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Mowrer v. U.S. Department of Transportation

United States District Court, District of Columbia

September 16, 2019

KLINT L. MOWRER, et al., Plaintiffs,



         Plaintiffs, two professional truck drivers named Klint L. Mowrer and Fred Weaver, Jr., dispute the accuracy of information about their driving records in a database kept by the Federal Motor Carrier Safety Administration (“FMCSA”). The First Amended Consolidated Complaint (“FACC”), ECF No. 95, seeks damages from the defendants-the United States, the Department of Transportation (“DOT”) and its Secretary, and the FMCSA and its Administrator-for alleged violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681 et seq., which regulates “consumer reporting agencies, ” id. § 1681(a). Earlier in this litigation, Mowrer and Weaver, joined by four other plaintiffs, had asserted multiple claims for damages and equitable relief under the FCRA and the Administrative Procedure Act, see Consolidated Compl., ECF No. 35, all of which-save Mowrer's and Weaver's FCRA damages claim-were dismissed for lack of Article III standing, see Owner-Operator Indep. Drivers Ass'n (OOIDA) v. Dep't of Transp., 879 F.3d 339, 345, 347 (D.C. Cir. 2018) (affirming in part and reversing in part OOIDA v. Dep't of Transp., 211 F.Supp.3d 252 (D.D.C. 2016)). Pending now is the defendants' motion to dismiss the amended complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, because the FMCSA is not a “consumer reporting agency” as that term is defined in the FCRA, or under Rule 12(b)(1) for lack of subject matter jurisdiction, because the plaintiffs' claim is barred by sovereign immunity. Defs.' Mot. at 1, ECF No. 97; Fed.R.Civ.P. 12(b). The defendants' motion to dismiss is granted for the reasons set forth below.

         I. BACKGROUND

         The statutory, regulatory, factual, and procedural background for this case were provided across several of the half-dozen prior decisions in this litigation. See OOIDA, 879 F.3d at 340- 42; OOIDA, 211 F.Supp.3d at 255-58; Weaver v. FMCSA, 744 F.3d 142, 142-44 (D.C. Cir. 2014). Background bearing on the reasons for granting defendants' motion is repeated here.

         A. Statutory and Regulatory Background

         1. The FCRA

         Aiming to ensure “fair and accurate credit reporting, ” 15 U.S.C. § 1681(a)(1), the FCRA regulates the creation and use of “consumer report[s], ”[1] id. § 1681a(d)(1), by “consumer reporting agenc[ies], ” id. § 1681a(f), “for certain specified purposes, ” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1545 (2016). The FCRA defines a “consumer reporting agency” as:

any person which, for monetary fees, dues, or on a cooperative nonprofit basis, 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, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports.

15 U.S.C. § 1681a(f).

         2.The FMCSA

         The FMCSA is the agency within the DOT responsible for ensuring “the highest degree of safety in motor carrier transportation.” 49 U.S.C. § 113(b). By statute, the FMCSA must operate a database, called the Motor Carrier Management Information System (“MCMIS”), containing safety records, including information about crashes, inspections, and enforcement, of commercial truck drivers and motor carriers. See 49 U.S.C. § 31106; see also 65 Fed. Reg. 83124, 83125 (Dec. 29, 2000) (describing data in the MCMIS). The MCMIS's statutory purpose is “to support safety regulatory and enforcement activities required under [Title 49].” 49 U.S.C. § 31106(a)(1). For example, and consistent with that purpose, the FMCSA uses information from the MCMIS to determine which motor carriers should be prioritized for inspection. See Silverado Stages, Inc. v. FMCSA, 809 F.3d 1268, 1271 (D.C. Cir. 2016).

         In the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (“SAFETEA-LU”), Congress mandated a new program to provide “electronic access” to the MCMIS's crash and inspection reports for “persons conducting preemployment screening services for the motor carrier industry.” SAFETEA-LU, Pub L. 109-59, § 4117(a), 119 Stat. 1144, 1728-29 (2005) (codified at 49 U.S.C. § 31150). DOT's Secretary must “ensure that any information that is released . . . will be in accordance with the [FCRA] and all other applicable Federal law.” 49 U.S.C. § 31150(b)(1). The FMCSA implemented SAFETEA-LU with the Pre-Employment Screening Program (“PSP”), which gives the motor carrier industry electronic access, for a fee, to three types of reports in the MCMIS. See Id. § 31150(a) (naming those three reports as “[c]ommercial motor vehicle accident reports, ” “[i]nspection reports that contain no driver-related safety violations, ” and “[s]erious driver-related safety violation inspection reports”); see also 75 Fed. Reg. 10554, 10554-55, 2010 WL 752157 (March 8, 2010) (announcing the PSP).

         B. Procedural Background

         These two consolidated suits challenge the accuracy of information stored in the MCMIS about state-issued citations that the plaintiffs allege were ultimately dismissed or resolved in their favor. FACC ¶¶ 113 (Mowrer), 134 (Weaver).[2] Both plaintiffs claim that a prospective employer accessed, through the PSP, a pre-employment screening report reflecting the allegedly inaccurate state citations. Id. ¶¶ 113 (Mowrer), 134 (Weaver).

         The initial consolidated complaint by Mowrer, Weaver, and four other plaintiffs survived a motion to dismiss “without prejudice, pending review of an administrative record.” Mem. Op. and Ord. at 8 (Mar. 10, 2015), ECF No. 46. In a footnote, the decision rejected the “defendants' contention that the FCRA does not contain a waiver of sovereign immunity” by “adopt[ing]” the holding of Bormes v. United States, 759 F.3d 793, 795 (7th Cir. 2014), that the United States waived its sovereign immunity by including “any . . . government or governmental subdivision or agency, ” 15 U.S.C. § 1681a(b), in the FCRA's definition of “person, ” see Mem. Op. and Ord. at 8 n.3. The FCRA's civil damages provisions subject “any person” ...

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