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.
2

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 
3

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 webbased 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.
4

Appellants are five commercial truck drivers and their

industry association, the Owner-Operator Independent Drivers 

Association, Inc. Between 2010 and 2013, state lawenforcement 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 . . . .”).
5

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
6

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 
7

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 addressinformation 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 
8

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 informationalstanding 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 
9

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 
11

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 
12

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 PreEmployment 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 
13

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 PreEmployment 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 threeyear 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 summaryjudgment 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 summaryjudgment 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.