Owner-Operator Independent Drivers Ass'n v. United States Department of Transportation

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 8, 2017 Decided January 12, 2018

No. 16-5355

OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION,

INC., ET AL.,

APPELLANTS

v.

UNITED STATES DEPARTMENT OF TRANSPORTATION, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-01158)

Joyce E. Mayers argued the cause for appellants. With her

on the briefs were Paul D. Cullen, Sr., and Paul D. Cullen, Jr.

Caroline D. Lopez, Attorney, U.S. Department of Justice,

argued the cause for appellees. With her on the brief were

Matthew M. Collette, Attorney, Paul M. Geier, Assistant

General Counsel, U.S. Department of Transportation, Joy K.

Park, Senior Trial Attorney, and Sue Lawless, Assistant Chief

Counsel for Enforcement and Litigation, Federal Motor Carrier

Safety Administration.

Before: TATEL, GRIFFITH, and SRINIVASAN, Circuit

Judges.

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Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: In Spokeo, Inc. v. Robins, 136 S. Ct.

1540 (2016), the Supreme Court held that “Article III standing

requires a concrete injury even in the context of a statutory

violation,” id. at 1549. In this case, several commercial truck

drivers and their industry association claim they were injured

by the Department of Transportation’s violation of its statutory

obligation to ensure the accuracy of a database containing

driver-safety information. As explained in this opinion, we

agree with the district court that, under Spokeo, the asserted

injury is, by itself, insufficiently concrete to confer Article III

standing. We reverse, however, with respect to two drivers

whose information was released to prospective employers

because dissemination of inaccurate driver-safety data inflicts

an injury sufficiently concrete to confer standing to seek

damages.

I.

To fulfill its mandate of ensuring “the highest degree of

safety in motor carrier transportation,” the Federal Motor

Carrier Safety Administration, part of the Department of

Transportation, maintains the Motor Carrier Management

Information System, a database of commercial truck drivers’

safety records. 49 U.S.C. § 113(b). The database includes

“accident reports and other safety violations.” Weaver v.

Federal Motor Carrier Safety Administration, 744 F.3d 142,

143 (D.C. Cir. 2014). Maintaining the database requires

collaboration between state and federal authorities. States serve

as the primary reporters of information: they are obligated by

statute to “collect[] and report[] . . . accurate, complete, and

timely motor carrier safety data.” 49 U.S.C.

§ 31102(c)(2)(P)(i). For its part, the Department must “ensure,

to the maximum extent practical, [that] all the data is complete,

timely, and accurate,” id. § 31106(a)(3)(F), and “prescribe

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technical and operational standards to ensure . . . uniform,

timely, and accurate information collection and reporting by

the States,” id. § 31106(a)(4)(A).

Shippers and other firms looking to hire truck drivers can

access certain information in the database, namely,

“[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.”

Id. § 31150(a). The Department makes this information

available through its Pre-Employment Screening Program,

which provides employers with reports containing crash data

from the previous five years and inspection data from the

previous three. See U.S. Department of Transportation, Federal

Motor Carrier Safety Administration (FMCSA), Privacy

Impact Assessment: Pre-Employment Screening Program

(PSP) (Apr. 14, 2010). The Department must “ensure that any

information that is released . . . will be in accordance with the

Fair Credit Reporting Act [FCRA] . . . and all other applicable

Federal law.” 49 U.S.C. § 31150(b)(1).

To further guarantee the accuracy of the database, the

Department must “provide a procedure for [drivers] to correct

inaccurate information.” Id. § 31150(b)(4). In order to

accomplish this, the Department “established ‘DataQs,’ a web-

based dispute resolution procedure that allows ‘[drivers] to

challenge[’]” database information. Weaver, 744 F.3d at 143

(quoting 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 (July 19, 2012)). When a driver files a challenge, the

Department forwards it to the relevant state and state officials

“decide how to respond.” Id.

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Appellants are five commercial truck drivers and their

industry association, the Owner-Operator Independent Drivers

Association, Inc. Between 2010 and 2013, state law-

enforcement authorities cited each driver for violating safety

regulations. See Owner-Operator Independent Drivers

Association v. Department of Transportation, 211 F. Supp. 3d

252, 256 (D.D.C. 2016). The drivers successfully challenged

the citations in state court: one driver was found not guilty after

trial, and the others had their citations dismissed. Id. at 256–57.

All but one of the drivers then asked through DataQs to have

the violation reports relating to the citations removed from the

Department’s database. Their requests were rejected because,

according to the relevant state authorities, the database at the

time displayed only initial citations, not adjudicated outcomes.

Id. at 257. The safety records of two drivers—Klint Mowrer

and Fred Weaver, Jr.—including the challenged violation

reports, were shared through the Pre-Employment Screening

Program; the other drivers’ records were never disseminated.

Id. at 260–61.

The individual drivers and the industry association then

sued, challenging the Department’s failure to ensure the

accuracy of the database and seeking injunctive and declaratory

relief under the Administrative Procedure Act, as well as

damages under the FCRA. The Department moved for

summary judgment, arguing (among other things) that the

drivers lacked Article III standing because they failed to show

concrete injury in fact. Id. at 258. The district court agreed and

dismissed the case. Id. at 261. The drivers appeal, and now we

consider the issue afresh. See Scenic America, Inc. v.

Department of Transportation, 836 F.3d 42, 49 (D.C. Cir.

2016) (“We review the District Court’s decision . . . as to

standing de novo . . . .”).

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II.

“‘[T]he irreducible constitutional minimum of standing’

requires ‘an injury in fact’ that is both ‘concrete and

particularized,’ and ‘actual or imminent, not conjectural or

hypothetical.’” Hancock v. Urban Outfitters, Inc., 830 F.3d

511, 513 (D.C. Cir. 2016) (alteration in original) (quoting

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). This

case focuses on just one element of that test: whether the

alleged injury is “concrete.” Specifically, we must determine

whether the drivers’ claimed injury—the Department’s failure

to discharge its statutory duty to ensure the accuracy of

information in the database—is sufficiently concrete to qualify

as injury in fact.

The touchstone for analyzing whether the violation of a

statutory obligation constitutes injury in fact is the Supreme

Court’s recent decision in Spokeo, Inc. v. Robins, 136 S. Ct.

1540 (2016). There, a consumer initiated a class action against

a company that operates an online search engine that gathers

and disseminates personal information, claiming that some of

the disseminated information was incorrect. Id. at 1544.

According to the consumer, this violated the FCRA, which

imposes procedural requirements on the creation and use of

consumer reports, including obligating reporting agencies to

adopt mechanisms for ensuring the information’s accuracy. Id.

at 1545–46. The Ninth Circuit had concluded that the consumer

satisfied Article III’s injury-in-fact requirement because he had

alleged that the search engine violated his rights under the

FCRA. Id. at 1546.

The Supreme Court vacated, explaining that the Ninth

Circuit, which had focused only on whether the injury was

particularized, failed to consider whether the injury was

concrete. See id. at 1548 (“We have made it clear time and time

again that an injury in fact must be both concrete and

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particularized.”). Where the alleged injury arises only from a

statutory violation—as in both Spokeo and here—the Court

explained, “[a] ‘concrete’ injury must be ‘de facto’; that is, it

must actually exist.” Id. Although “Congress may ‘elevat[e] to

the status of legally cognizable injuries concrete, de facto

injuries that were previously inadequate in law,’” this “does not

mean that a plaintiff automatically satisfies the injury-in-fact

requirement whenever a statute grants a person a statutory right

and purports to authorize that person to sue to vindicate that

right.” Id. at 1549 (alteration in original) (quoting Lujan, 504

U.S. at 578). “Article III standing requires a concrete injury

even in the context of a statutory violation.” Id. A plaintiff

“could not, for example, allege a bare procedural violation,

divorced from any concrete harm, and satisfy the injury-in-fact

requirement of Article III.” Id.

Our court has had only a few occasions to apply Spokeo.

In Hancock v. Urban Outfitters, Inc., 830 F.3d 511 (D.C. Cir.

2016), for example, we found that plaintiffs who alleged that a

retailer’s request for their zip codes violated District of

Columbia consumer-protection law lacked standing. As we

explained, the plaintiffs asserted only “a bare violation of the

requirements of D.C. law,” and failed to allege any concrete

injury from the disclosure of a zip code, “for example, any

invasion of privacy, increased risk of fraud or identity theft, or

pecuniary or emotional injury.” Id. at 514. Collecting Spokeo’s

scattered definitions of concreteness, we held that a “plaintiff

must allege some ‘concrete interest’ that is ‘de facto,’ ‘real,’

and ‘actually exist[s].’” Id. (alteration in original) (quoting

Spokeo, 136 S. Ct. at 1548, 1549).

Although helpful, Hancock does not control here. In that

case, we found that a request for potentially harmless

information—a zip code—had inflicted no concrete injury. See

id. (“If, as the Supreme Court advised, disclosure of an

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incorrect zip code is not a concrete Article III injury, then even

less so is [plaintiffs’] naked assertion that a zip code was

requested and recorded without any concrete consequence.”).

By contrast, here we address information that could easily harm

a driver were it shared with prospective employers. See

Appellants’ Br. 41–42 (explaining that reports of safety

violations can meaningfully affect a driver’s professional

reputation and employment prospects).

In support of their argument that they are injured by the

mere existence of inaccurate information in the database, the

drivers focus on two sentences from Spokeo: “[T]he violation

of a procedural right granted by statute can be sufficient in

some circumstances to constitute injury in fact. In other words,

a plaintiff in such a case need not allege any additional harm

beyond the one Congress has identified.” Spokeo, 136 S. Ct. at

1549. According to the drivers, these sentences mean that the

Department’s failure to comply with its statutory obligation to

ensure accuracy, by itself, inflicts injury in fact. We disagree.

The emphasized phrase “additional harm” clearly presumes

that the putative plaintiff had already suffered a de facto injury

resulting from the procedural violation. Reinforcing this

understanding of Spokeo, the Supreme Court, in explaining the

“no additional harm” proposition, cited only examples of torts

like libel and slander per se, where, so long as harmful

information is publicized, “the law has long permitted recovery

by certain tort victims even if their harms may be difficult to

prove or measure,” and cases relating to the denial of access to

publically available information. Id. at 1549–50 (citing the

informational-standing cases FEC v. Akins, 524 U.S. 11

(1998), and Public Citizen v. Department of Justice, 491 U.S.

440 (1989)). Although the Court gave no indication that these

two types of cases represent the only instances in which

concrete injury results from a bare statutory violation, all of the

decisions the drivers discuss fall into these two categories. That

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is, the violation at issue resulted either from the disclosure of

potentially harmful information or from the withholding of

public information. See Appellants’ Br. 28–32 (collecting

cases).

For example, the drivers invoke the Ninth Circuit’s

decision on remand in Spokeo, where the court found that the

plaintiff had standing because he had “specifically alleged that

[the search engine] falsely reported” facts about his age, marital

status, education, employment, and wealth. Robins v. Spokeo,

Inc., 867 F.3d 1108, 1117 (9th Cir. 2017). The Ninth Circuit

also found that the allegations were not too speculative to

establish concrete injury because “both the challenged conduct

and the attendant injury ha[d] already occurred,” as the search

engine “ha[d] indeed published a materially inaccurate

consumer report.” Id. at 1118. Rather than supporting the

drivers’ allegation of injury, then, Spokeo on remand confirms

that actual publication is required to seek FCRA relief, and that

a statutory violation is sufficient to confer standing only if “the

specific procedural violations alleged . . . actually harm, or

present a material risk of harm to, [concrete] interests.” Id. at

1113.

The primary case the drivers cite from this Circuit is

Friends of Animals v. Jewell, 828 F.3d 989 (D.C. Cir. 2016),

see Appellants’ Br. 27–28, a post-Spokeo informational-

standing case in which plaintiffs challenged the Interior

Secretary’s failure to publish certain information as required by

the Endangered Species Act. The drivers read Jewell to support

their claim that Congress has broad latitude to define new

injuries, but the opinion in that case emphasizes the narrow

scope of informational injuries and makes clear that plaintiffs

must suffer real harm to support standing. “A plaintiff suffers

sufficiently concrete and particularized informational injury,”

we explained, “where the plaintiff alleges that: (1) it has been

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deprived of information that, on its interpretation, a statute

requires the government or a third party to disclose to it, and

(2) it suffers, by being denied access to that information, the

type of harm Congress sought to prevent by requiring

disclosure.” Jewell, 828 F.3d at 992. Jewell is thus of no help

to the drivers unless, of course, they can show that the

Department’s statutory violation injured them.

The other post-Spokeo cases the drivers cite, not one of

which comes from this Circuit, similarly involve putative

injuries flowing from either disclosure or withholding.

Appellants’ Br. 28–32. The courts in each case made clear that

plaintiffs must show de facto injury even in the presence of a

statutory violation. See, e.g., In re Horizon Healthcare Services

Inc. Data Breach Litigation, 846 F.3d 625, 640 (3d Cir. 2017)

(“Plaintiffs here do not allege a mere technical or procedural

violation of FCRA. They allege instead the unauthorized

dissemination of their own private information—the very

injury that FCRA is intended to prevent. There is thus a de facto

injury that satisfies the concreteness requirement for Article III

standing.” (footnotes omitted)); Strubel v. Comenity Bank, 842

F.3d 181, 190 (2d Cir. 2016) (“[A] creditor’s alleged violation

of each notice requirement, by itself, gives rise to a ‘risk of real

harm’ to the consumer’s concrete interest in the informed use

of credit.” (quoting Spokeo, 136 S. Ct. at 1549)).

Unlike the injuries in the cited cases, the drivers’ injury

results from neither disclosure nor withholding of information.

Rather, the drivers claim they suffer concrete harm from the

mere fact that the Department, in violation of its statutory

obligations, has allowed inaccurate safety information to

remain in the database. As the drivers describe it, they “have a

concrete interest in the accuracy of their safety records and the

reflection those records project of their safety risk to potential

employers.” Appellants’ Br. 33. “As long as [the Department]

10

maintain[s] the inaccurate records of safety regulation

violations in the database,” the drivers explain, “[the

Department] expose[s] [them] to a material risk of harm

contrary to their concrete statutory rights to accuracy.” Id. at

38.

But does the drivers’ injury actually exist? Or, put another

way, if inaccurate information falls into a government

database, does it make a sound? Considering the drivers’

claimed harm in light of “both history and the judgment of

Congress,” as Spokeo instructs, we think not. Spokeo, 136 S.

Ct. at 1549.

To begin with, the drivers have identified no historical or

common-law analog where the mere existence of inaccurate

information, absent dissemination, amounts to concrete injury.

They cite libel and slander per se, Appellants’ Br. 35–38, but

as explained above, those torts require evidence of publication.

See Restatement (First) of Torts § 569 (libel); id. § 570

(slander).

Turning then to the judgment of Congress, we see nothing

in the relevant statutory provisions indicating that Congress

“creat[ed] legal rights” in the database’s accuracy, “the

invasion of which creates standing.” Havens Realty Corp. v.

Coleman, 455 U.S. 363, 373 (1982) (quoting Warth v. Seldin,

422 U.S. 490, 500 (1975)); cf. Electronic Privacy Information

Center v. Presidential Advisory Commission on Election

Integrity, No. 17-5171, 2017 WL 6564621, at *4 (D.C. Cir.

Dec. 26, 2017) (finding that the plaintiff lacks standing because

“it has not suffered the type of harm that [the statute] seeks to

prevent”). As the safety statute itself demonstrates, Congress

chose to protect truck drivers by requiring the Department to

ensure the accuracy of their information, not by giving them a

right of action to independently enforce that obligation. Section

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31106 obligates the Department to ensure the database’s

accuracy and creates no right on the part of the drivers to police

their records—it speaks only to the Department itself. See 49

U.S.C. § 31106(a)(3)(F) (“The Secretary shall . . . .”). Section

31150, which authorizes pre-employment screening, likewise

reflects Congress’s concern about disclosure, requiring the

Department to “ensure that any information that is released . . .

will be in accordance with the [FCRA] and all other applicable

Federal law.” Id. § 31150(b)(1) (emphasis added). The FCRA,

too, is designed “to curb the dissemination of false

information.” Spokeo, 136 S. Ct. at 1550 (emphasis added).

These statutes demonstrate that the harm Congress was

concerned about was the dissemination of inaccurate

information, not its mere existence in the Department’s

database.

The drivers’ inability to identify a clear common-law

analog or to cite statutory support for their injury confirms that

the mere existence of inaccurate information in the database is

insufficient to confer Article III standing. Even though the

inaccuracy results from the Department’s violation of its

statutory obligations, the drivers have identified no “‘concrete

interest’ that is ‘de facto,’ ‘real,’ and ‘actually exist[s].’”

Hancock, 830 F.3d at 514 (alteration in original) (quoting

Spokeo, 136 S. Ct. at 1548, 1549).

As the foregoing analysis demonstrates, although the mere

existence of inaccurate database information is not sufficient to

confer Article III standing, the dissemination of that

information to a potential employer is. At oral argument,

Department counsel conceded that the two drivers whose safety

records were released to prospective employers, Mowrer and

Weaver, would have had standing to seek damages had they

preserved the issue for appeal. See Oral Arg. 19:23–41. In our

view, however, Mowrer and Weaver did raise the issue, stating

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in their opening brief that “[a]t a minimum, the false report of

a criminal history for [Mowrer] and Weaver constitute[s] the

demonstration of the kind of concrete injury sufficient to

satisfy Article III standing.” Appellants’ Br. 42; see also

Compl. ¶ 192 (describing the Department’s “disseminat[ion of]

false, inaccurate, imprecise, incomplete and misleading

consumer reports to third parties through the [Pre-Employment

Screening Program]”). Given this, and because we agree that

the two drivers have suffered concrete harm, we shall remand

their damages claims to the district court.

In addition to damages, the drivers and their industry

association seek prospective relief, including a declaration that

the Department violated its statutory obligations and an

injunction requiring it to purge the database of inaccurate

information. Because “standing is not dispensed in gross,”

Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650

(2017) (quoting Davis v. FEC, 554 U.S. 724, 734 (2008)), the

drivers “must demonstrate standing separately for each form of

relief sought,” Friends of the Earth, Inc. v. Laidlaw

Environmental Services (TOC), Inc., 528 U.S. 167, 185 (2000).

In order to have standing to seek prospective relief, the drivers

must show that dissemination of their database information is

“continuing” or “imminen[t].” Steel Co. v. Citizens for a Better

Environment, 523 U.S. 83, 108 (1998).

The drivers, however, concede that their information is no

longer at risk of dissemination through the Department’s Pre-

Employment Screening Program, as inspection data remains

available for only three years after the relevant inspection and

all of their disputed violations occurred more than three years

ago. Appellants’ Br. 45. The association, moreover, has offered

no evidence that any other member faces a risk of

dissemination. Indeed, any risk of future disclosure of

inaccurate information has been virtually eliminated by the

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Department’s adoption of an interpretive rule in June 2014,

which allows States “to reflect the results of adjudicated

citations” in the database and prohibits certain favorably

adjudicated citations from being disseminated through the Pre-

Employment Screening Program. See Motor Carrier

Management Information System (MCMIS) Changes To

Improve Uniformity in the Treatment of Inspection Violation

Data, 79 Fed. Reg. 32,491, 32,491, 32,495 (June 5, 2014).

Though the rule applies only to inspections occurring “on or

after August 23, 2014,” thus excluding the drivers’ citations

here, it ensures that similarly situated individuals face little risk

of future harm. Id. at 32,495. Besides, given that our review

comes more than three years after the rule’s effective date, all

inaccurate records are protected from disclosure because they

are either subject to the new rule or have aged out of the three-

year Pre-Employment Screening Program reporting period.

The drivers insist that, in addition to the Pre-Employment

Screening Program, database information is used for other

purposes and that the records can be accessed under the

Freedom of Information Act, 5 U.S.C. § 552. But the drivers

offer no evidence that such use is either imminent or likely, as

would be required to support standing at the summary-

judgment stage. See Lujan, 504 U.S. at 561 (“[Standing] must

be supported . . . with the manner and degree of evidence

required at the successive stages of the litigation.”).

Finally, this case is not at all like our court’s recent

decision in Attias v. CareFirst, Inc., 865 F.3d 620 (D.C. Cir.

2017). There, at the motion to dismiss stage, we found that

health-insurance customers had standing to sue their insurer

after it suffered a cyberattack in which an intruder breached a

customer-information database. Id. at 622. We explained that

“identity theft . . . would constitute a concrete and

particularized injury” and that “the complaint plausibly alleges

14

that the plaintiffs now face a substantial risk of identity theft,”

because “an unauthorized party ha[d] already accessed

personally identifying data . . . and it is much less

speculative—at the very least, it is plausible—to infer that this

party ha[d] both the intent and the ability to use that data for

ill.” Id. at 627–28. Here, not only are we at the summary-

judgment stage, where the drivers must produce evidence of

injury, see Lujan, 504 U.S. at 561, but nothing in the record

indicates that anyone has recently accessed or used the

information at issue or intends to do so in the future. The

prospect of future injury is thus purely “speculative.” Attias,

865 F.3d at 626 (quoting Spokeo, 136 S. Ct. at 1548).

III.

Because the drivers are unharmed by the mere existence of

inaccurate information in the Department’s database and

because dissemination of that information is not imminent,

they—with the exception of Mowrer and Weaver—have

suffered no concrete injury in fact sufficient to confer Article

III standing. To be sure, it is possible that the mere existence of

inaccurate information in a government database could cause

concrete harm depending on how that information is to be used.

We conclude only that, under the specific circumstances of this

case, the drivers have failed to show standing for all of the relief

they seek. We thus affirm in part, reverse in part, and remand

to the district court for further proceedings consistent with this

opinion.

So ordered.