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

• Decision Date: 24 September 2021
• Docket Number: No. 19-5321,19-5321
• Citation: 14 F.4th 723
• Parties: Klint L. MOWRER & Fred Weaver, Jr., Appellants v. UNITED STATES DEPARTMENT OF TRANSPORTATION, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

14 F.4th 723

Klint L. MOWRER & Fred Weaver, Jr., Appellants

v.UNITED STATES DEPARTMENT OF TRANSPORTATION, et al., Appellees

No. 19-5321

United States Court of Appeals, District of Columbia Circuit.

Argued September 9, 2020

Decided September 24, 2021

Charles R. Stinson argued the cause for appellants. With him on the briefs was Paul D. Cullen, Jr.

Caroline D. Lopez, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Mark B. Stern, Attorney, Steven G. Bradbury, General Counsel, U.S. Department of Transportation, Paul M. Geier, Assistant General Counsel for Litigation and Enforcement, Joy K. Park, Senior Trial Attorney, and Charles J. Fromm, Deputy Chief Counsel, Federal Motor Carrier Safety Administration.

Before: Wilkins and Katsas, Circuit Judges, and Randolph, Senior Circuit Judge.

Concurring opinion filed by Circuit Judge Katsas.

Opinion concurring in part and concurring in the judgment filed by Senior Circuit Judge Randolph.

Katsas, Circuit Judge:

The Fair Credit Reporting Act (FCRA) governs the release of consumer reports by consumer reporting agencies. This appeal presents the question whether the Federal Motor Carrier Safety Administration acts as a consumer reporting agency by distributing safety records of commercial truck drivers to prospective employers, as required by another federal statute. We hold that the Administration does not act as a consumer reporting agency in doing so, and we therefore affirm the dismissal of this FCRA damages action.

I

A

Congress enacted FCRA to "ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy." Safeco Ins. Co. of Am. v. Burr , 551 U.S. 47, 52, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007). To those ends, FCRA comprehensively regulates consumer reporting agencies. Three of its obligations are directly relevant here. First, in preparing any consumer report, a consumer reporting agency must follow reasonable procedures to ensure that the report is as accurate as possible. 15 U.S.C. § 1681e(b). Second, a consumer reporting agency must investigate the accuracy of its records about a consumer upon the consumer's request. Id. § 1681i(a)(1)(A). Third, if a consumer reporting agency includes in a consumer report any information that the consumer disputes, the report must note the dispute and summarize the consumer's position. Id. §§ 1681c(f), 1681i(b)–(c).

FCRA defines its key terms "consumer reporting agency" and "consumer report." A "consumer reporting agency" is "any person which, for monetary fees ... regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties." 15 U.S.C. § 1681a(f). A "consumer report" is any communication by a consumer reporting agency that meets two further criteria. First, the communication must bear on a consumer's "credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living." Id. § 1681a(d)(1). Second, the report must "serv[e] as a factor in establishing the consumer's eligibility" for one of several purposes, including "employment purposes," id. § 1681a(d)(1)(B), which means "evaluating a consumer for employment, promotion, reassignment or retention as an employee," id. § 1681a(h). A "consumer" means an "individual." Id. § 1681a(c).

FCRA authorizes the award of money damages to consumers injured by certain violations of the statute. It imposes liability for actual damages on "[a]ny person" who negligently violates FCRA. 15 U.S.C. § 1681o(a)(1). It imposes liability for actual or statutory damages on "[a]ny person" who willfully violates FCRA. Id. § 1681n(a)(1)(A). And it defines "person" to include any "government or governmental subdivision or agency." Id. § 1681a(b).

B

Since 1998, Congress has required the Department of Transportation to collect information on the safety of commercial motor carriers and drivers. See 49 U.S.C. § 31106(a)(3)(B). The Department stores this information in a database called the Motor Carrier Management Information System (MCMIS), which it administers through the Federal Motor Carrier Safety Administration. See Privacy Act of 1974: System of Records, 65 Fed. Reg. 83,124, 83,124 –25 (Dec. 29, 2000). The Administration obtains much of its information from state governments, which submit it as a condition of receiving federal grants. 49 U.S.C. § 31102(c)(2)(L), (P) ; 49 C.F.R. § 350.207(a)(12).

The MCMIS contains a wide range of information on commercial drivers, including crash reports and records of roadside inspections. See 65 Fed. Reg. at 83,125. The Administration uses this information to guide the operation of its Motor Carrier Safety Assistance Program, see id. , which involves grants to states and other political jurisdictions to improve motor-carrier safety, see 49 U.S.C. § 31102 ; 49 C.F.R. § 350.101 et seq. The agency also uses the information to guide enforcement actions, see 65 Fed. Reg. at 83,124 –25, which include placing out of service commercial drivers who pose an imminent safety hazard, 49 U.S.C. § 521(b)(5).

In 2005, Congress directed the Administration to make certain "reports contained in the [MCMIS]" available to pre-employment screeners for the motor-carrier industry. Safe, Accountable, Flexible, Efficient (SAFE) Transportation Act, Pub. L. No. 109-59, sec. 4117(a), § 31150(a), 119 Stat. 1144, 1728 (2005) (codified at 49 U.S.C. § 31150(a) ). The Administration implemented this direction by creating the Pre-Employment Screening Program (PSP), which allows prospective employers to access crash and inspection reports on commercial drivers. See Privacy Act of 1974; System of Records Notice, 75 Fed. Reg. 10,554, 10,556 (Mar. 8, 2010). The PSP charges a fee for these records and provides them only with a driver's written consent. Id.

The SAFE Transportation Act requires the Administration to satisfy four conditions before releasing MCMIS records to prospective employers. First, the Administration must ensure that any information is released "in accordance with [FCRA] and all other applicable Federal law." 49 U.S.C. § 31150(b)(1). Second, it must ensure that the driver consents to release of the information. Id. § 31150(b)(2). Third, it must ensure that the screener does not release the information to any other person. Id. § 31150(b)(3). Fourth, it must provide a procedure for the driver to correct inaccurate information in the System. Id. § 31150(b)(4).

To comply with the last requirement, the Administration created a system called DataQs, which allows drivers to challenge information in their PSP reports. Pre-Employment Screening Program, 77 Fed. Reg. 42,548, 42,551 (July 19, 2012). DataQs forwards challenges to the state that submitted the contested information, and the state then decides whether to modify or remove it. Id.

C

Klint Mowrer and Fred Weaver are commercial truck drivers who received citations for violating state vehicle-safety laws. Mowrer received a citation because his "rear drag link" had too much "play by hand pressure," and Weaver received a citation for failing to obey a "direction to be weighed." J.A. 213, 215. State officials reported these citations to the Administration for inclusion in the MCMIS. After state courts dismissed misdemeanor charges arising from the citations, the drivers asked the Administration to remove them from the MCMIS. The Administration forwarded the requests to the relevant state agencies, which declined to remove the citations. The drivers later authorized the release of their PSP reports to prospective employers. They now allege harm from the inclusion of their citations in those reports.

Mowrer sued the Administration in 2012. Joined by three other drivers and a trade association, he raised claims under FCRA, the Administrative Procedure Act, and the Privacy Act. Weaver filed a similar action in our court, which we transferred to the district court. Weaver v. FMCSA , 744 F.3d 142, 148 (D.C. Cir. 2014). In 2014, the drivers filed a consolidated complaint, which raised FCRA and APA claims but no Privacy Act claim. The drivers sought both damages under FCRA and prospective relief under the APA.

In 2015, the Administration moved to dismiss the complaint. The district court denied the motion. As relevant here, it held that FCRA waives federal sovereign immunity from damages for FCRA violations. Owner-Operator Indep. Drivers Ass'n v. Foxx , Nos. 12-1158, 14-548, 2015 WL 13651262, at *4 n.3 (D.D.C. Mar. 10, 2015).

In 2016, the district court dismissed the complaint for lack of standing. Owner-Operator Indep. Drivers Ass'n v. DOT , 211 F. Supp. 3d 252, 261–62 (D.D.C. 2016). We affirmed in part and reversed in part. 879 F.3d 339 (D.C. Cir. 2018). First, we held that Mowrer and Weaver had Article III standing to seek damages based on the Administration's release of their safety records to prospective employers. Id. at 345. Next, we held that the drivers and their co-plaintiffs lacked standing to seek injunctive relief, as the MCMIS no longer contained any disputed information. Id. at 346–47. We thus remanded for further proceedings on the damages claims under FCRA. Id. at 347.

In May 2018, the drivers moved to amend their complaint to seek injunctive relief and to resurrect the Privacy Act claims that they previously had asserted individually. The district court denied the motion on the ground that our prior decision had foreclosed injunctive relief, but it invited the drivers to add Privacy Act claims in a separate motion. Owner-Operator Indep. Drivers Ass'n v. DOT , 316 F. Supp. 3d 201, 206 (D.D.C. 2018). The drivers again moved to add those claims in July 2018. But after receiving briefing on the issue, the court denied that motion as well. It reasoned that the drivers had unduly delayed in seeking to revive their Privacy Act claims and, in the alternative, that the...