FLAT CREEK TRANSPORTATION, LLC, an Alabama limited liability company, Plaintiff - Appellant,
FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION, KENNY PRICE, in his capacity as Alabama Division Administrator (Federal Motor Carrier Safety Administration), ELAINE L. CHAO, in her capacity as Secretary of the United States Department of Transportation, Defendants - Appellees, ANTHONY R. FOXX, in his capacity as Secretary of the United States Department of Transportation, Defendant.
from the United States District Court for the Middle District
of Alabama No. 1:16-cv-00876-WKW-TFM
TJOFLAT, NEWSOM, and GILMAN, [*] Circuit Judges.
NEWSOM, CIRCUIT JUDGE
Creek Transportation sued for declaratory and injunctive
relief on the ground that the Federal Motor Carrier Safety
Administration had unfairly targeted it for compliance
reviews and used an unsound methodology in doing so. The
district court determined that it lacked subject matter
jurisdiction to consider Flat Creek's claims. We reach
the same destination, albeit by a different route. We hold
that Flat Creek has failed to establish that it suffered an
injury in fact sufficient to confer standing to sue.
Creek is a commercial trucking company that transports
non-hazardous materials-mainly refrigerated food products.
Because it operates in interstate commerce, Flat Creek is
subject to Department of Transportation regulations. And
because its claim in this case arises against the backdrop of
that regulatory framework, we begin with an overview.
(Warning: Unavoidable Acronyms Ahead.)
the Department of Transportation, the Federal Motor Carrier
Safety Administration ("FMCSA") investigates
carriers and operators to ensure that they are safe to
operate on the nation's roadways. FMCSA uses a
safety-fitness rating methodology-the Safety Measurement
System ("SMS")-to quantify carriers'
performance. For example, the SMS pulls data from the Motor
Carrier Management Information System ("MCMIS")
related to the following metrics: (1) unsafe driving, (2)
fatigued driving, (3) driver fitness, (4)
controlled-substance and alcohol usage, (5) vehicle
maintenance, (6) hazardous-material compliance, and (7) crash
history. See 75 Fed. Reg. 18256, 18258 (April 9,
2010). A carrier is given a weighted score in each category,
and then ranked against other carriers. A non-passenger
carrier like Flat Creek will receive a "High Risk"
designation only if it both (1) has "not received an
onsite investigation in the previous 18 months" and (2)
scores at or above the 90th percentile for two consecutive
months in two or more of the MCMIS categories "most
closely correlated with crash risk": unsafe driving,
fatigued driving, vehicle maintenance, and crash history.
See 81 Fed. Reg. 11875-11876 Table 2 (March 7,
"High Risk" designation matters to carriers because
FMCSA concentrates its compliance-review resources on
high-risk carriers. A compliance review is an in-depth
"on-site investigation of the carrier's
operations" that examines the carrier's compliance
with FMCSA regulations. 49 C.F.R. § 385.3; see
generally 49 C.F.R. § 350 et seq. During a
compliance review, an investigator will commonly check
driver-qualification files, records of duty status
(basically, a measure of the number of hours a driver works
per 24-hour day), and vehicle-maintenance data. Within 30
days of the review, FMCSA is required to give the carrier
written notice that it has received one of three safety
ratings: Satisfactory, Conditional, or Unsatisfactory. 49
C.F.R. §§ 385.3, 385.11(a).
ratings become "final" in slightly different ways.
A Satisfactory rating, the highest possible, is final and
effective on the date of notice. 49 C.F.R. § 385.11(b).
A Conditional or Unsatisfactory rating becomes final after 60
days if it is not upgraded or overturned. Id. §
385.11(c). If a carrier seeks administrative review of an
Unsatisfactory or Conditional rating, FMCSA's Chief
Safety Officer must issue a written decision, which will
constitute final agency action. Id. § 385.15.
Alternatively, a carrier can take corrective action to remedy
a reported defect and then request an upgrade from FMCSA.
Id. § 385.11(f). If a carrier receives a final
Unsatisfactory safety rating, it is prohibited from
operating. Id. § 385.13(a).
commercial carriers don't particularly want a "High
Risk" designation-because it increases their odds of a
compliance review, which in turn increases the odds of
suffering an Unsatisfactory safety rating. To address
carriers' concerns about the accuracy of the data that
factor into the MCMIS system and that can prompt a high-risk
designation, FMCSA operates DataQs, an online system that
permits carriers to contest those data. See FMCSA
Notice to Amend a System of Records, 77 Fed. Reg. 42548-02,
42551 (July 19, 2012).
Creek's managing member is Charles Patterson Sr.;
Charles' son, Charles Patterson Jr., formed and operates
a separate trucking company, Liberty Express. In July 2016,
FMCSA's Alabama Division conducted a compliance review of
Liberty. Flat Creek alleges that during Liberty's review,
FMCSA agents asked a bunch of questions about Flat Creek. Not
long after, Flat Creek says, its regulatory consultant
"received surreptitious reports from confidential
informant(s) that agents … planned an unannounced
on-site compliance investigation at Flat Creek with the
intent to falsely charge Flat Creek with multiple regulatory
violations sufficient to … forc[e] a cessation of Flat
Creek's operations and likely leading to business
closure." Br. of Appellant at 8-9.
Creek further asserts that it received "flawed"
scores and misleading crash indicators from the MCMIS data,
which FMCSA failed to keep "complete, timely, and
accurate" as required by 49 U.S.C. §
31106(a)(3)(F). Flat Creek insists that, contrary to the
MCMIS data, the company's industry performance was above
average. Because of the allegedly false data, Flat Creek
contends that it "has been consistently but illegally
targeted and harassed with multiple unwanted interventions by
FMCSA agents." Compl. at ¶ 47. It points to three
specific events: an allegedly false Notice of Violation on
October 6, 2011; another of the same, on August 10, 2012; and
an unfavorable compliance-review report on June 15, 2015. And
even before those three instances, Flat Creek alleges that it
was subject to "an unusually high number of [compliance
review] interventions." Id. at ¶ 48. ...