Flock v. U.S. Dep't of Transp.

Decision Date30 September 2015
Docket NumberCivil Action No. 14-13040-FDS
Parties Thomas O. Flock, Dennis K. Thompson, Thomas H. Gooden, C. Douglas Heisler, Walter A. Johnson, and Gayla S. Kyle, Plaintiffs, v. United States Department of Transportation, Federal Motor Carrier Safety Administration, and United States of America, Defendants.
CourtU.S. District Court — District of Massachusetts

David A. Cohen, Paul D. Cullen, Jr., Paul D. Cullen, Sr., The Cullen Law Firm PLLC, Washington, DC, John A. Kiernan, Bonner, Kiernan, Trebach & Crociata, LLP, Boston, MA, for Plaintiff.

Anita Johnson, United States Attorney's Office, Boston, MA, for Defendant.



, United States District Judge

This is a class action involving the allegedly unlawful release by the federal government of motor carrier driver safety violation reports. The plaintiffs, all of whom are motor carrier drivers, have brought suit against the United States, the United States Department of Transportation, and the Federal Motor Carrier Safety Administration ("FMCSA").

For many years, the FMSCA has maintained a database of information on the safety records of commercial motor carrier drivers as part of its Motor Carrier Management Information System ("MCMIS"). In 2005, Congress enacted a new statute, codified at 49 U.S.C. § 31150

, stating that the FMSCA "shall provide" to prospective employers of motor carrier drivers "electronic access" to three specific categories of reports. The statute requires, however, that the applicant-driver provide written consent. Beginning in 2010, the FMSCA implemented new regulations that established a Pre-Employment Screening Program ("PSP"). Under the PSP, prospective employers can obtain electronic access to data from the MCMIS system. The available data is broader than the three categories identified in § 31150. The PSP likewise requires driver consent before dissemination of the information.

The plaintiff drivers have filed suit, in substance alleging that the dissemination of that additional information violates their rights under the Privacy Act, 5 U.S.C. § 552a


Defendants have moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(1)

for lack of subject-matter jurisdiction and Fed. R. Civ. P. 12(b)(6) for failure to state a claim. For the following reasons, the motion to dismiss will be granted.

I. Background

The FMCSA is an "administration of the Department of Transportation" that is charged with considering "the assignment and maintenance of safety as the highest priority, recognizing the clear intent, encouragement, and dedication of Congress to the furtherance of the highest degree of safety in motor carrier transportation." 49 U.S.C. § 113

. It regulates the activities of commercial motor vehicle operators, among other ways, through promulgation of the Federal Motor Carrier Safety Regulations ("FMCSR") in the Code of Federal Regulations. See 49 C.F.R. §§ 350–99. The FMCSR are enforced primarily by individual states, which in return for federal grants under the Motor Carrier Safety Assistance Program ("MCSAP"), adopt the regulations and enforce them under state law. See 49 U.S.C. § 31102 ; 49 C.F.R. § 350; see also National Tank Truck Carriers, Inc. v. Federal Highway Admin., 170 F.3d 203, 205 (D.C.Cir.1999) (noting that "the individual states are the primary enforcers of the highway safety regulations at roadside inspection"). States accepting federal grants under MCSAP are required to collect and report motor carrier safety data to the FMCSA. See 49 U.S.C. § 31102(b)(2)(Q) ; 49 C.F.R. § 350.201.

States conduct roadside inspections and other activities and report the motor carrier safety data collected during such activities to FMCSA. 49 U.S.C. § 31102(b)(2)

, 49 C.F.R. part 350. During roadside inspections, state officers are required to document any violations of the FMCSR or related state laws. Details of the roadside inspections, including any violations and the identity of the motor carrier, the driver, and the commercial motor vehicle, are recorded on a standard roadside inspection form. See 49 U.S.C. § 31102(b)(2)(H)

, 49 C.F.R. § 350.201(h) and (i).

The information collected by the states is electronically submitted to the Motor Carrier Management Information System ("MCMIS"), a database operated and maintained by the FMCSA. See 65 Fed. Reg. 83124 (Dec. 29, 2000)

(citing 49 U.S.C. §§ 502, 504, 506, 508 and 49 C.F.R. § 1.73 ). MCMIS thus contains, among other things, "information on commercial truck drivers' safety records, such as accident reports and other safety violations." Weaver v. Federal Motor Carrier Safety Admin., 744 F.3d 142, 143 (D.C.Cir.2014) ; (Compl. ¶ 1); see 49 U.S.C. § 31106. The MCMIS database has been maintained by the FMCSA since at least 2000, and a similar data system was maintained by FMCSA's predecessor agency, the Federal Highway Administration, for many years prior to that date. See 65 Fed. Reg. 83124.

B. The Privacy Act

The Privacy Act of 1974, codified in part at 5 U.S.C. § 552a

, contains "a comprehensive and detailed set of requirements for the management of confidential records held by Executive Branch agencies." F.A.A. v. Cooper, ––– U.S. ––––, 132 S.Ct. 1441, 1446, 182 L.Ed.2d 497 (2012). Subject to a variety of exceptions, the Privacy Act provides that "[n]o agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency ...."

There are two exceptions that are potentially relevant here. The first is that an agency may disclose a record "pursuant to a written request by, or with the prior consent of, the individual to whom the record pertains ...." 5 U.S.C. § 552a(b)

. The second is that an agency may disclose a record contained in a system of records if the record would be for a "routine use," which means, "with respect to the disclosure of a record, the use of such record for a purpose which is compatible with the purpose for which it was collected ...." Id. §§ 552a(b)(3), 552a(a)(7).

According to the Privacy Act, "[e]ach agency that maintains a system of records shall ... maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President ...." Id. § 552a(e)(1)

. In addition, "[e]ach agency that maintains a system of records shall ... publish in the Federal Register upon establishment or revision a notice of the existence and character of the system of records ...." Id. § 552a(e)(4). The Act defines "system of records" as "a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual." Id. § 552a(a)(5). For information to be disclosed under the "routine use" exception, an agency must publish in its system of records notice "each routine use of the records ... including the categories of users and the purpose of such use." Id. § 552a(e)(4)(D).

The Privacy Act authorizes individuals to bring civil actions against an agency whenever that agency "fails to comply" with the Act's requirements "in such a way as to have an adverse effect on an individual." Id. § 552a(g)(1)(D)

. For violations "in which the court determines that the agency acted in a manner which was intentional or willful," individuals may recover the sum of "actual damages ..., but in no case shall a person entitled to recovery receive less than the sum of $1,000," and costs and reasonable attorney fees. Id. § 552a(g)(4). The term "actual damages" does not include damages for mental or emotional distress. F.A.A. v. Cooper, 132 S.Ct. at 1446


C. The Enactment of Section 31150

The government contends that prior to 2005, a prospective employer of a motor carrier driver who sought information about the safety record of that driver could obtain access to the MCMIS database in one of two ways. First, the employer could obtain the driver's written consent and transmit that document to the FMCSA. Because the Privacy Act of 1974 permits the release of such information with the relevant person's consent, the FCMSA would then provide the requested information. See 5 U.S.C. § 552a(b)

. Second, the employer could file a request with the FMCSA under the Freedom of Information Act, 5 U.S.C. § 552.

In 2005, Congress enacted the Safe, Accountable, Flexible, Efficient Transportation Equity Act. Pub. L. 109–59, 119 Stat. 1728

(Aug. 10, 2005). Part of the new statute, now codified at 49 U.S.C. § 31150, mandated the creation of an electronic system to provide certain types of information on motor carrier drivers to prospective employers. The apparent purpose of the statute was to establish a more expeditious, and perhaps more reliable, method for employers to obtain background information on prospective employees.

Subsection (a) of the statute provides that the FMCSA "shall provide persons conducting preemployment screening services for the motor carrier industry electronic access to the following reports contained in the [MCMIS]:

(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)


Subsection (b) provides: "Before providing a person access to [MCMIS] under subsection (a), the [FMCSA] shall–––

(1) ensure that any information that is released to such person will be in accordance with the Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.

) and all other applicable Federal law;

(2) ensure that such person will not conduct a screening without the operator-applicant's written consent;

(3) ensure that any information that is released to such person will not be released to any person or entity, other than the motor carrier requesting the screening services or the operator-applicant, unless...

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