Fred Weaver, Jr. & Owner-Operator Indep. Drivers Assn., Inc. v. Fed. Motor Carrier Safety Admin.

• Decision Date: 28 February 2014
• Docket Number: No. 13–1172.,13–1172.
• Citation: 744 F.3d 142
• Parties: Fred WEAVER, Jr. and Owner–Operator Independent Drivers Assn., Inc., Petitioners v. FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION, et al., Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

744 F.3d 142

Fred WEAVER, Jr. and Owner–Operator Independent Drivers Assn., Inc., Petitioners

v.FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION, et al., Respondents.

No. 13–1172.

United States Court of Appeals,District of Columbia Circuit.

Argued Dec. 5, 2013.

Decided Feb. 28, 2014.

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.

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 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 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 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 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...