United States Court of Appeals: For The First Circuit

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 nonserious violations or, in the alternative, were coercive in that
- 1 -
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,
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
- 2 -
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 driverrelated 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
- 3 -
employees.
The
SORN
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 nonserious violations runs afoul of the Privacy Act, which contains
"a
comprehensive
and
detailed
set
- 4 -
of
requirements
for
the
management
of
agencies."
F.A.A. v. Cooper, 132 S. Ct. 1441, 1446 (2012).
Privacy
Act
confidential
limits
all
records
held
administrative
by
Executive
agency
Branch
The
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.
merits,
the
district
court
held
that
49
U.S.C.
On the
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

- 5 -
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.
Defenders of Wildlife, 504 U.S. 555, 560 (1992).
Lujan v.
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."
id. 552a(g)(4)(A).
- 6 -
5 U.S.C. 552a(g)(1)(D);
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
Congress."
effect
to
the
unambiguously
Chevron, 467 U.S. at 842-43.
expressed
intent
of
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.
- 7 -
See
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
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.
violations.
The statute is silent as to non-serious
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.
- 8 -
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
employers, provided they have driver consent.
to
prospective
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,
statute."
Chevron,
interpretation
reasons.
capricious,
easily
467
or
U.S.
passes
manifestly
at
muster
contrary
843-44.
under
this
to
the
The
agency's
test
for
two
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
- 9 -
as
pre-employment
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 driveremployees 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
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
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.
- 10 -
that
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" driverrelated safety violations, is unavailing.
consent
form
violations
reveals
deemed
by
nothing
the
that
Secretary
A plain reading of the
would
of
suggest
that
Transportation
only
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
- 11 -
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
Congressional intent in passing 49 U.S.C. 31150.

AFFIRMED.
- 12 -
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United States Court of Appeals

For the First Circuit

APPEAL FROM THE UNITED STATES DISTRICT COURT

Paul D. Cullen, Sr., with whom Joyce E. Mayers, Paul D.

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

These reports, which are

provided to the agency by individual states in exchange for federal

In order for such reports to be disseminated, the agency

must obtain driver consent, consistent with the requirements of

deemed by the Secretary of Transportation to have been "serious,"

brought suit against the FMCSA and the Department of Transportation

Appellants therefore argue that the

potential disclosure to employers of non-serious driver-related

dismiss, reasoning that 31150 was ambiguous as to the agency's

Transportation (DOT), is tasked with the maintenance of safety in

FMCSA works with individual states

to collect motor carrier safety data, including crash reports and

is stored in a database known as the Motor Carrier Management

information about prospective employees.

That statute provides,

operator being prohibited from continuing to operate a commercial

Driver consent is required before records can be

disseminated to a potential employer.

On March 8, 2010, the agency issued a System of Records

indicated that payment of a $10 fee would be required to access

U.S.C. 31150(b)(2) and 5 U.S.C. 552a, driver consent was also

form states, in relevant part, "I understand that I am consenting

On July 19, 2012, the FMCSA issued

77 Fed. Reg. 42548-02.

these SORNs purported to exclude non-serious driver-related safety

F.A.A. v. Cooper, 132 S. Ct. 1441, 1446 (2012).

personal records, subject to various exceptions, one of which is

P. 12(b)(1). The district court held that the complaint adequately

ambiguous as to the question of non-serious driver-related safety

This appeal followed.

Woods v. Wells Fargo Bank,

N.A., 733 F.3d 349, 353 (1st Cir. 2013).

"construe all factual allegations in the light most favorable to

the non-moving party to determine if there exists a plausible claim

dismiss, the complaint must state a claim for relief that is

Bell Atl. Corp. v. Twombly, 550 U.S. 544,

In order to satisfy the requirements of Article III

standing, a party must allege sufficient facts to demonstrate

future injury must be sufficient to show that such injury is

Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138, 1147 (2013).

addition to the constitutional standing requirements, in order to

The district court found that the complaint "adequately

Because we believe this case can be decided easily on the

merits, we assume without deciding that Appellants have adequately

Under Chevron, we first

ask whether Congress has spoken to the precise question at issue.

Chevron, 467 U.S. at 842-43.

If Congress has not

unambiguously expressed its intent as to the precise question at