United States District Court, District of Columbia
KLINT L. MOWRER, et al., Plaintiffs,
U.S. DEPARTMENT OF TRANSPORTATION, et al ., Defendants.
A. HOWELL, CHIEF JUDGE.
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.
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.
Statutory and Regulatory Background
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], ” 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).
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).
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
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). 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
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” ...