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Bits & Pieces

Jonathan Botey, Plaintiff, v. Robert Green, et al.,

United States District Court,

M.D. Pennsylvania.

Jonathan Botey, Plaintiff,

v.

Robert Green, et al., Defendants.

3:12-CV-01520

|

Filed 10/27/2016

Attorneys and Law Firms

Daniel W. Munley, Daniel F. Mitsakos, Munley, Munley & Cartwright, P.C., Scranton, PA, for Plaintiff.

David Ronald Chludzinski, Rawle & Henderson LLP, Pittsburgh, PA, Gary N. Stewart, Rawle & Henderson LLP, Harrisburg, PA, Jeffrey Ryan, William H. Chamblee, Chamblee, Ryan, Kershaw & Anderson, P.C., Dallas, TX, for Defendants.

 

 

MEMORANDUM OPINION

Robert D. Mariani, United States District Court Judge

*1 Presently before the Court is a Report and Recommendation (“R&R”) (Doc. 125) by Magistrate Judge Carlson, in which he recommends denying Defendants’ Motion for Partial Summary Judgment (Doc. 103) in the above-captioned action. Defendants have filed Objections to which Plaintiff has responded. (See Defs.’ Objections, Docs. 126, 127; Pl.’s Opp. to Defs.’ Objections, Doc. 128; see also, Defs.’ Reply, Doc. 129). For the reasons that follow, upon de novo review of the R&R, the Court will adopt the pending R&R.

 

On August 6, 2012, this action was removed from the Court of Common Pleas of Lackawanna County. Plaintiff Jonathan Botey’s Amended Complaint alleges Negligence against Robert Green, Conwell Corporation, and FFE Transportation Services, Inc. (Counts I, II, III), as well requesting punitive damages against each of the Defendants (Counts IV, V, VI). (Doc. 1).

 

On September 9, 2015, Defendants filed a Motion for Partial Summary Judgment requesting that the Court dismiss the punitive damage claims against Green, FFE, and Conwell as well as Plaintiff’s claims for negligent qualification, hiring, supervision, monitoring, training and entrustment against FFE and Conwell contained in Counts II and III. (Doc. 103).

 

Defendants object to the Magistrate Judge’s findings on several grounds and request that this Court reverse the Magistrate Judge’s recommended denial of Defendants’ motion or, in the alternative, reverse the Magistrate Judge’s recommended denial of Defendant Green and Conwell’s motion for partial summary judgment. (Doc. 126, ¶ 8). Specifically, Defendants argue that (1) Plaintiff failed to meet the heavy burden set forth to defeat a motion for summary judgment with respect to punitive damages and that FFE’s training records are insufficient to create an issue of fact and to defeat a motion for summary judgment; and (2) that the Magistrate Judge erred by “impliedly” finding that FFE’s training records apply to each of the three defendants. (See generally, Docs. 127, 129).

 

Defendants argue that “Plaintiff’s evidence carries the implication that any negative commentary, or violation, during driver training may: 1) later raise a genuine issue of fact; 2) permit an inference against a trucking company that it had a subjective awareness of the dangers posed by its drivers; and 3) later subject it to a punitive damages claim. Plaintiff essentially argues that trucking companies must have perfect drivers at all times, even during training, to prevent a claim for punitive damages.” (Doc. 127, at 11) (italics in original). While the Court declines to comment on Defendants’ interpretation of Plaintiff’s argument, it disagrees with Defendants’ ultimate conclusion. This is not a case where Plaintiff has merely pointed to one or two violations. Rather, as the R&R makes clear, FFE’s training records indicate that:

[O]n December 30, 2010, the driving instructor noted 40 deficiencies in Green’s performance; on January 7, 2011, 42 deficiencies were noted; on January 13, 2011, 32 deficiencies were observed; on January 21, 2011, 42 deficiencies were noted; and on January 28, 2011, 7 deficiencies–including a citation for running a stop sign–were documented in these training records. (Doc. 108-11, 108-13.) The nature of these deficiencies is also troubling. These the [sic] training records: (1) documented an episode in which Green ran a stop sign and received a citation; and (2) also repeatedly identified deficiencies by Green in terms of situational awareness when making left turns, precisely the maneuver that was executed by Green on the day of the accident. In fact, some 57 deficiencies relating to left hand turns were documented by Green’s instructors between December 31, 2010, and the end of January, 2011. The narratives that accompany these training records also would permit an inference that FFE had a subjective awareness of the dangers posed by Green’s erratic test driving performance. According to the training records, the driving instructor “had to constantly stay on [Green] to check mirrors and cancel turn signal;” cited Green for “not doing traffic checks;” stated that “at times [it was] extremely difficult to instruct [Green to] follow[ ] simple directions;” and warned that Green “has way too many excuses” while the instructor observed that he was “trying desperately to get [Green] to understand good driving habits.” (Doc. 108-11).

*2 (Doc. 125, at 16-17).

 

Defendants do not dispute the above-cited evidence, instead arguing that Green passed the training program, upon completion of the program “began driving and did well”, a statement the Court assumes is based on Defendants’ assertion that Green “had not been in one accident since the time he had been authorized to drive solo”, and that “Plaintiff and the U.S. Magistrate Judge do not explain how several accidents and the failure to follow safety guidelines by a truck driver do not amount to more than gross negligence under Calhoun1” (Doc. 127, at 9). Defendants further state that prior to hiring Green, “FFE reviewed Green’s application, conducted a Motor Vehicle Record check and did not note any accidents or incidents. FFE investigated Green’s prior record with Star Transport, another company he drove commercial vehicles for and the response provided from that company was that his performance was ‘Satisfactory.’ FFE also performed an investigation into non-DOT positions, criminal background check and even sent Green to a refresher course where he received 130 hours of additional training.” (Id. at 10) (internal citations omitted).

 

Defendants’ assertions are insufficient to establish the lack of a factual dispute. Rather, despite Defendants’ list of reasons that their conduct cannot be found to be outrageous or recklessly indifferent, the deposition of Tommy Dodd in particular, raises issues of fact as to Defendants’ state of mind and motives for allowing Green to drive alone and whether they purposefully overlooked the risk of harm that Green may have posed to the public. Although Tommy Dodd, Green’s trainer, testified that he would not have “passed” Green in February, 2011 if he did not feel that Green was ready to drive (Dep. Of Dodd, Doc. 108-10, at 109) and that Dodd had failed more people than he “signed off for upgrade” (id. at 23), Dodd also testified as follows:

*3 Q. After five weeks of –– after five weeks of evaluating this particular individual, you went in and had a meeting with the training department, right?

  1. Yes, sir.
  2. No week during this process –– at no time did you ever pass him during this process in those five weeks, right?
  3. Yes, sir.
  4. Okay. Did you recommend that they fire him?
  5. I didn’t recommend that they fire him. I recommended that – that he was ––he was unsafe.
  6. Okay.
  7. And that, you know, it –– the conversation basically went down as I explained to them what happened. I had turned in the evaluation forms. And ––and I –– and, you know, I told them, I said, “These are –– these are my concerns.” And ––
  8. What were your concerns, Tom?
  9. The not –– not following instruction, not paying attention to signs, you know, and, of course, that ––; that one major one where –– where he could have potentially hurt somebody.
  10. Okay. So you expressed to FFE your concerns that this driver was not safe.
  11. Yeah.
  12. Okay. Certainly someone who is driving a truck that is not safe can injure someone with that truck, right?
  13. Yes, sir.
  14. Is that something is that something that was – well, let me put it to you this way: Did FFE understand your concerns regarding the safety of this driver when you left that meeting?

….

  1. I don’t –– I can’t –– I can’t say what they were –– what they were thinking. I don’t know what they were thinking. All I know is –– is what I had –– all I know is what I had told them and then what they had told me.
  2. Right. Well, what did you just say; all you know is what they told you?
  3. I mean, you know, I can’t say what they were thinking when I presented all of the –– all of the facts to them.
  4. Right. Did they tell you anything other than keep working with him?
  5. Basically, you know, give him another chance, you know, if –– if we put him with another trainer, he’ll have to start all over again. And, you know, they were –– at that time, you know, they were looking for a –– a good success rate.
  6. So you feel like they wanted him to do well because they needed, drivers?
  7. Yes.
  8. Okay. Was there a driver shortage at that time at FFE?
  9. There’s always a driver shortage.
  10. That wasn’t my question, though.
  11. Yes, you could say that.
  12. My question was –– okay. Was there pressure on you to make sure that the drivers in your training course were graduating so that FFE had drivers to drive their trucks?
  13. At times, yes, I did –– I did feel –– I did feel that pressure.
  14. Did you feel that pressure with Mr. Green?
  15. Yes, when they when they encouraged me to keep working with him.
  16. Okay. One second, Mr. Dodd. Tommy, you keep saying that he –– the only alternative was to put him with another driver and they’d have to start all over again, but is that something that you thought that he should do, start his training again?
  17. Personally and this is just my personal opinion: They –– they should have let him go with that citation. That’s my personal –
  18. So you think they should have dismissed him?
  19. Yes, that’s my personal opinion.

(Id. at 78-81). Dodd’s testimony, in conjunction with the numerous deficiencies noted in the training records which occurred only months prior to the accident at issue in this case, are sufficient to create a factual dispute with respect to FFE’s state of mind, motives for allowing Green to drive alone, and knowledge of the risks he posed when driving.

 

*4 Magistrate Judge Carlson recognized the “exceedingly high standard for the award of punitive damages” (Doc. 125, at 11) and no party disputes the law set forth by the Magistrate Judge with respect to the standard governing the award of punitive damages in Pennsylvania. Additionally, while finding that material disputes of fact exist such that summary judgment must be denied, Magistrate Judge Carlson carefully emphasized, and this Court reiterates, that the Court is “not opin[ing] [ ] whether Botey can ultimately meet these exacting standards at trial.” (Doc. 125, at 15). As the Magistrate Judge properly noted, the evidence submitted by the parties, when viewed in a light most favorable to the plaintiff, “may permit an inference that the defendants were aware of a significant risk to safety posed by Green’s driving, and failed to act in the face of this known risk. Recognizing that the evidence may permit such an inference, which in turn would support a claim for punitive damages, our course of action in this case is clear.” (Doc. 125, at 17).

 

Defendants’ second basis for why this Court should not adopt Magistrate Judge Carlson’s R&R in its entirety argues that the Magistrate Judge Impliedly found that Plaintiff’s evidence applies to all three defendants’ and that “it is arguable how the evidence gives FFE an appreciation of the risk of harm, but is non-existent against Green and Conwell.” (Doc. 127, at 11-12).

 

In Defendants’ Motion for Partial Summary Judgment, they briefly argued that Conwell LLC, which does business as FFE, employed Green, and that Plaintiff improperly named Conwell Corporation, not Conwell LLC, as a defendant in the Amended Complaint. (Doc. 105, at 6). Defendant further argued that Conwell Corporation’s “only relationship to this matter is the ownership of the tractor-trailer Green was driving and as there has been no evidence presented that the vehicle was in anyway malfunctioning, in disrepair or was a cause of this accident, Conwell Corporation should be dismissed from this action, in its entirety.” (Doc. 105, at 6 n.6). Defendants raise this issue again in their Objections to the R&R, pointing out that the Magistrate Judge does not address this point. (Doc. 127, at 13). In response, Plaintiff cites to one document, entitled “Conwell Corporation Experienced Driver Information” for the proposition that “documents produced in discovery regarding Defendant Green’s hire by FFE Defendants bear the corporate name, Conwell Corporation” and therefore “at a minimum, this creates a genuine issue of material fact on the issue precluding summary judgment.” (Doc. 108, at 1 n.1; Doc. 128, at 1 n.1, 11-12) (citing Doc. 108-6). Nonetheless, Defendants’ argument fails because they have provided no evidence to support their self-serving statement that Conwell Corporation’s involvement in this action is limited to its supplying the truck at issue, is a separate entity from Conwell, LLC, and was not involved in Green’s hiring or training. As such, Defendants have failed to carry their initial burden on summary judgment and their request that Conwell Corporation be dismissed in its entirety must be denied as genuine disputes of material facts exists as to the relationship, if any, between Conwell, LLC and Conwell Corporation, whether Conwell Corporation was also Plaintiff’s employer, and the extent, if any, of its involvement in, and knowledge of, the events leading up to the accident at issue.

 

Because of the above genuine dispute of fact, the Court also cannot determine the extent to which FFE’s training records were available to Conwell Corporation and what control Conwell Corporation had over FFE’s decisions with respect to its drivers, and therefore cannot determine Conwell Corporation’s subjective awareness of the risk of harm to which Botey was exposed and whether it acted or failed to act in conscious disregard of that risk.

 

The Magistrate Judge also properly applied the evidence contained in the FFE training records in determining that a genuine dispute of material fact existed with respect to the punitive damage claim against Green. Defendant Green was aware of his numerous deficiencies during training, such as failing to pay attention to signs, including a stop sign (Doc. 108-11), not doing traffic checks (id.), and at times being “extremely difficult to instruct [,] following simple directions[,] too many excuses” (id.). Therefore, a reasonable fact-finder may find that the record evidence found in FFE’s training records sufficiently supports a conclusion that Green was subjectively aware of the risk of his actions and that he acted or failed to act in conscious disregard of that risk.

 

*5 For the aforementioned reasons, the Court will adopt Magistrate Judge Carlson’s R&R (Doc. 125) in its entirety. A separate order follows.

 

All Citations

Slip Copy, 2016 WL 6395900

 

 

Footnotes

1

Defendants argue that this Court’s prior decision in Calhoun v. Van Loon, 2014 WL 3428876 (M.D. Pa. 2014), wherein it granted summary judgment to Defendants on Plaintiffs’ claims of punitive damages, is applicable to the present action. However, Calhoon is distinguishable. In Calhoon, Defendant Van Loon, while backing his tractor-trailer into a parking place in a parking lot, collided with Plaintiff’s parked tractor trailer at low speed, causing injuries to the plaintiff. Although Van Loon had been in a previous accident wherein he backed into another car, the company provided him additional training as a result. The present case is inapposite, where Green had numerous training deficiencies noted on his record, his trainer, although passing him in the program, expressed serious concerns about Green’s driving to the company, and Green’s noted driving deficiencies were relevant to his ability to safely drive long distances on highways, not simply issues with parking a truck at low speed, where the danger to the public is arguably much lower and less likely to result in catastrophic injuries or death.

Thomas O. Flock, et al., Plaintiffs, Appellants, v. United States Department of Transportation, et al.,

United States Court of Appeals,

First Circuit.

Thomas O. Flock, et al., Plaintiffs, Appellants,

v.

United States Department of Transportation, et al., Defendants, Appellees.

No. 15-2310

|

October 21, 2016

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS, [Hon. F. Dennis Saylor, IV, U.S. District Judge]

Attorneys and Law Firms

Paul D. Cullen, Sr., with whom Joyce E. Mayers, Paul D. Cullen, Jr., The Cullen Law Firm, PLLC, Washington, DC, and John A. Kiernan, Bonner, Kiernan, Trebach & Crociata, LLP, Boston, MA, were on brief for appellants.

Caroline D. Lopez, Attorney, Appellate Staff Civil Division, U.S. Department of Justice, with whom Kathryn B. Thomson, General Counsel, Department of Transportation, Paul M. Geier, Assistant General Counsel for Litigation, Peter J. Plocki, Deputy Assistant General Counsel for Litigation and Enforcement, Joy K. Park, Senior Trial Attorney, with whom Charles J. Fromm, Acting Chief Counsel, and Debra S. Straus, Senior Attorney, Federal Motor Carrier Safety Administration, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Carmen M. Ortiz, United States Attorney for the District of Massachusetts, and Matthew M. Collette, Attorney, Appellate Staff Civil Division, U.S. Department of Justice, were on brief for appellee.

Before Lynch, Stahl, and Thompson, Circuit Judges

Opinion

STAHL, Circuit Judge.

 

*1 As part of its regulatory mandate to maintain and enhance safety on the nation’s highways, the Federal Motor Carrier Safety Administration (FMCSA) maintains a database of inspection history and safety records pertaining to commercial motor vehicle operators. These reports, which are provided to the agency by individual states in exchange for federal funding, can be made available for a small fee to employers seeking to gather records on prospective drivers whom they might wish to employ. In order for such reports to be disseminated, the agency must obtain driver consent, consistent with the requirements of the Privacy Act, 5 U.S.C. § 552a et seq.

 

Appellants in this case are a group of drivers who allege that disseminating certain information contained in the database, in particular, driver-related safety violations that are not deemed by the Secretary of Transportation to have been “serious,” exceeds the agency’s statutory mandate under 49 U.S.C. § 31150, which governs the agency’s disclosure obligations. Appellants brought suit against the FMCSA and the Department of Transportation in the U.S. District Court for the District of Massachusetts, arguing that § 31150 unambiguously prohibited the agency from disclosing non-serious driver-related safety violations. They further argued that, although they had signed consent forms, these were ambiguous as to whether they authorized disclosure of non-serious violations or, in the alternative, were coercive in that the drivers had no choice but to sign the forms if they ever wanted to apply for future jobs. Appellants therefore argue that the potential disclosure to employers of non-serious driver-related safety violations violates the Privacy Act.

 

The district court granted the FMCSA’s motion to dismiss, reasoning that § 31150 was ambiguous as to the agency’s authority to include non-serious driver-related safety violations in the database and that the agency’s interpretation of the statute was entitled to deference and ultimately permissible under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). This appeal followed. After oral argument and careful consideration, we AFFIRM.

 

 

  1. Facts & Background

The FMCSA, a sub-agency of the Department of Transportation (DOT), is tasked with the maintenance of safety in motor carrier transportation. FMCSA works with individual states to collect motor carrier safety data, including crash reports and safety violations, through roadside inspections. Collected data is stored in a database known as the Motor Carrier Management Information System (MCMIS).

 

In 2005, Congress mandated, through 49 U.S.C. § 31150, that the agency grant motor carrier employers access to certain minimum information from the MCMIS database in order to provide potential employers with a fast and reliable method for obtaining information about prospective employees. That statute provides, in relevant part:

The Secretary of Transportation shall provide persons conducting pre-employment screening services for the motor carrier industry electronic access to the following reports contained in the [MCMIS database] … 1) Commercial motor vehicle accident reports; 2) Inspection reports that contain no driver-related safety violations; 3) Serious driver-related safety violation inspection reports.

*2 49 U.S.C. § 31150(a).

 

The purpose of the database is “to assist the motor carrier industry in assessing an individual operator’s crash and serious safety violation inspection history as a preemployment condition.” 49 U.S.C. § 31150(c). “Serious” driver-related safety violations are defined in the statute as a violation which “the Secretary [of Transportation] determines will result in the operator being prohibited from continuing to operate a commercial motor vehicle until the violation is corrected.” 49 U.S.C. § 31150(d). The statute does not explicitly state whether the agency is required to make available non-serious driver-related safety violations. Driver consent is required before records can be disseminated to a potential employer. 49 U.S.C. § 31150(b).

 

On March 8, 2010, the agency issued a System of Records Notification (SORN) proposing the establishment of a system of records for a Pre–Employment Screening Program (PSP), which was designed to give prospective employers rapid access to crash and inspection data about potential driver employees. The SORN indicated that payment of a $10 fee would be required to access the PSP, and also explained that the PSP would contain MCMIS data regarding the most recent five years’ crash data and the most recent three years’ inspection information. Consistent with 49 U.S.C. § 31150(b)(2) and 5 U.S.C. § 552a, driver consent was also required before such information could be disclosed. The consent form states, in relevant part, “I understand that I am consenting to the release of safety performance information including crash data from the previous five (5) years and inspection history from the previous three (3) years.” On July 19, 2012, the FMCSA issued another SORN, reaffirming that the PSP would include the most recent five years’ crash and most recent three years’ inspection data, adding that this would “includ[e] serious safety violations for an individual driver.” 77 Fed. Reg. 42548–02. Neither of these SORNs purported to exclude non-serious driver-related safety violations from the database.

 

Appellants, professional commercial vehicle operators, brought suit against the DOT, the FMCSA and the United States, alleging that the FMCSA had prepared and made available for dissemination to potential employers one or more PSP reports that included non-serious driver-related safety violations. According to Appellants, the inclusion and possible dissemination of non-serious violations runs afoul of the Privacy Act, which contains “a comprehensive and detailed set of requirements for the management of confidential records held by Executive Branch agencies.” F.A.A. v. Cooper, ––– U.S. ––––, 132 S.Ct. 1441, 1446, 182 L.Ed.2d 497 (2012). The Privacy Act limits all administrative agency disclosure of personal records, subject to various exceptions, one of which is the consent of the person to whom the record pertains. 5 U.S.C. § 552a(b).

 

FMCSA moved to dismiss the case for failure to state a claim under Fed. R. Civ. P. 12(b)(6), and alternatively argued that the plaintiffs lacked standing and that the case should be dismissed for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). The district court held that the complaint adequately alleged an impending future injury for Article III purposes, and elected to reach the merits without deciding whether the plaintiffs had adequately alleged standing under the Privacy Act. On the merits, the district court held that 49 U.S.C. § 31150 was ambiguous as to the question of non-serious driver-related safety violations, and that FMCSA’s interpretation of the statute was ultimately permissible under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). This appeal followed.

 

 

  1. Discussion

*3 [1] [2]We review a district court’s grant of a motion to dismiss for failure to state a claim de novo. Woods v. Wells Fargo Bank, N.A., 733 F.3d 349, 353 (1st Cir. 2013). This requires us to “construe all factual allegations in the light most favorable to the non-moving party to determine if there exists a plausible claim upon which relief may be granted.” Wilson v. HSBC Mortgage Servs., Inc., 744 F.3d 1, 7 (1st Cir. 2014). To survive a motion to dismiss, the complaint must state a claim for relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

 

 

  1. Standing

[3] [4]As a threshold matter, the FMCSA argues that Appellants have not properly pled standing under Article III or under the Privacy Act. In order to satisfy the requirements of Article III standing, a party must allege sufficient facts to demonstrate injury-in-fact, a causal relationship between the injury and the challenged conduct, and redressability of that injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Allegations of future injury must be sufficient to show that such injury is “certainly impending” in order to constitute injury-in-fact. Clapper v. Amnesty Int’l USA, ––– U.S. ––––, 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264 (2013). In addition to the constitutional standing requirements, in order to bring a claim for damages under the Privacy Act, Appellants must demonstrate that the FMCSA’s actions had an “adverse effect” on them in a way that caused “actual damages,” and that the FMCSA’s actions were “intentional or willful.” 5 U.S.C. § 552a(g)(1)(D); id. § 552a(g)(4)(A).

 

The district court found that the complaint “adequately alleges an adverse effect sufficient to meet the constitutional standing requirements,” while noting that “[w]hether the complaint adequately alleges an injury sufficient to state a claim under the Privacy Act is a different question, which the Court does not reach.” Because we believe this case can be decided easily on the merits, we assume without deciding that Appellants have adequately pled standing under both Article III and the Privacy Act.

 

 

  1. The Agency’s Interpretation under Chevron

[5] [6] [7]When agency action is grounded in an interpretation of the agency’s organic statute, we apply the familiar framework set forth by the Supreme Court in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under Chevron, we first ask whether Congress has spoken to the precise question at issue. “If the intent of Congress is clear,” using the “traditional tools of statutory construction, … the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842–43, 104 S.Ct. 2778. If Congress has not unambiguously expressed its intent as to the precise question at issue, the agency’s interpretation is “given controlling weight unless [it is] arbitrary, capricious, or manifestly contrary to the statute.” Id. at 843–44, 104 S.Ct. 2778. Under the second prong, the agency’s construction is accorded substantial deference, and courts are not to substitute their own judgment for that of the agency. See United States v. Mead Corp., 533 U.S. 218, 229, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (“[A] reviewing court has no business rejecting an agency’s exercise of its generally conferred authority to resolve a particular statutory ambiguity simply because the agency’s chosen resolution seems unwise.”).

 

[8]Determining whether ambiguity exists within a statute requires us to apply the “ordinary tools of statutory construction.” City of Arlington, Tex. v. F.C.C., ––– U.S. ––––, 133 S.Ct. 1863, 1868, 185 L.Ed.2d 941 (2013). First and foremost, this requires beginning with a textualist approach, as the “plain meaning” of statutory language controls its construction. Summit Inv. & Dev. Corp. v. Leroux, 69 F.3d 608, 610 (1st Cir. 1995) (internal citation omitted).

 

*4 [9]We conclude that § 31150 does not unambiguously restrict the agency’s discretion to make records including non-serious driver-related safety violations available to potential employers with driver consent. The statute is silent as to non-serious violations. Appellants argue that by including three specific categories of reports that the agency must make available, Congress imposed a ceiling on the agency’s disclosure authority, excluding categories of reports not specifically enumerated. However, § 31150’s command that the agency “shall provide” certain reports can just as easily be read as a floor, an articulation of the agency’s minimum disclosure obligations, rather than a ceiling. See Mass. Trs. Of E. Gas & Fuel Assocs. v. United States, 377 U.S. 235, 244, 84 S.Ct. 1236, 12 L.Ed.2d 268 (1964) (noting that “the word [‘shall’] does not of linguistic necessity denote a maximum”). There is no specific language in the statute which precludes the agency from making other driver-related information available to prospective employers, provided they have driver consent. We therefore agree with the district court’s conclusion at Chevron Step One that Congress has not spoken to the precise question of non-serious violations.

 

[10]Finding, as we have, that the statute is ambiguous as to the precise question of non-serious driver-related safety violations, we will not disturb an agency’s interpretation unless it is “arbitrary, capricious, or manifestly contrary to the statute.” Chevron, 467 U.S. at 843–44, 104 S.Ct. 2778. The agency’s interpretation easily passes muster under this test for two reasons. First, reading the statute as a floor comports with the broader statutory purpose of § 31150 and the agency’s mandate to promote highway safety. Given that the focus of the database is on the motor carrier industry, by providing information on driver safety records to potential employers, it is hard to see how this goal would be undermined by the disclosure of more information. See 49 U.S.C. § 31150(c) (“The process for providing access to [the MCMIS database] shall be designed to assist the motor carrier industry in assessing an individual operator’s crash and serious safety violation inspection history as a pre-employment condition.”). Indeed, the disclosure of other non-serious driver-related safety violations, such as speeding tickets or other fines, would presumably help achieve Congress’s objective in empowering the FMCSA to promote highway safety.

 

Second, the agency’s reading does not leave driver-employees without protection, as both the Privacy Act and § 31150(b)(2) require driver consent before the relevant MCMIS records can be disclosed. There is no suggestion that the agency has disclosed any information without driver consent, and nothing in the record which leads us to conclude that the agency’s reading of the statute is impermissible.

 

To conclude, we agree with the district court that the agency’s interpretation is a reasonable and permissible construction of the statute and is entitled to Chevron deference.

 

 

  1. Consent Forms under the Privacy Act

[11]One final argument raised in this appeal is whether the mandatory consent form signed by Appellant drivers are illegitimate as a result of being ambiguous or coercive. The parties argued this issue before the district court, but the court did not make a ruling.1 The form reads as follows: “I understand that I am consenting to the release of safety performance information including crash data from the previous five (5) years and inspection history from the previous three (3) years.” Appellants make two arguments that the consent forms are invalid, neither of which we find convincing.

 

First, they argue that the consent forms can only be read as authorizing disclosure of violations specifically enumerated in § 31150. Since we conclude that the agency’s reading of the statute as a floor, rather than a ceiling, is permissible, Appellants’ argument on this score, that “crash data from the previous five (5) years and inspection history from the previous three (3) years” should be read as including only “serious” driver-related safety violations, is unavailing. A plain reading of the consent form reveals nothing that would suggest that only violations deemed by the Secretary of Transportation to be “serious” would be released to a potential employer.

 

*5 Second, Appellants argue that the consent forms are coercive, since drivers have no choice but to sign off on the release of their records in order to seek future employment, and that signing this form “would certainly doom any prospect for employment.” This argument fails for two reasons. First, Appellants do not allege, nor is it suggested, that employment with motor carriers is contingent on participation in the PSP. The language of § 31150 itself makes clear that the use of the PSP by employers is entirely optional. See 49 U.S.C. § 31150(c) (“Use of the process shall not be mandatory and may only be used during the preemployment assessment of an operator-applicant.”). Second, even assuming that the majority of motor carrier employers would seek to use the MCMIS database, Appellants have failed to show that their chances for employment are doomed entirely as a result of employers having access to their driving records which include non-serious violations. Finally, it bears repeating that broader access to such information in the motor carrier industry, from the standpoint of improving highway safety, is consistent with Congressional intent in passing § 49 U.S.C. § 31150.

 

AFFIRMED.

 

All Citations

— F.3d —-, 2016 WL 6135471

 

 

Footnotes

1

By failing to raise the arguments about the consent form in their opening brief, appellants may have waived this argument on appeal. However, because the consent form argument fails on the merits, we need not address the issue of waiver.

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