United States Court of Appeals 

For the First Circuit 

No. 20-1125 

SORREDA TRANSPORT, LLC, 

Petitioner, 

v. 

UNITED STATES DEPARTMENT OF TRANSPORTATION; UNITED STATES, 

Respondents. 

PETITION FOR REVIEW OF AN ORDER OF THE 

FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION 

Before*

Lynch, Circuit Judge, 

and Saris,** District Judge. 

 Keith A. Mathews and Associated Attorneys of New England on 

brief for petitioner. 

 Joy K. Park, Senior Trial Attorney, Department of 

Transportation, Heather Eilers-Bowser, Chief Counsel, Charles J. 

Fromm, Deputy Chief Counsel, Sue Lawless, Assistant Chief Counsel 

for Litigation, Cynthia Campise, Trial Attorney, Federal Motor 

Carrier Safety Administration, Steven G. Bradbury, General 

Counsel, Paul M. Geier, Assistant General Counsel for Litigation 

and Enforcement, and Peter J. Plocki, Deputy Assistant General 

Counsel for Litigation and Enforcement, on brief for respondents. 

* While this case was submitted to a panel that included 

Judge Torruella, he did not participate in the issuance of the 

panel's opinion. The remaining two panelists therefore issued the 

opinion pursuant to 28 U.S.C. § 46(d). 

** Of the District of Massachusetts, sitting by designation. 
November 9, 2020 
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LYNCH, Circuit Judge. Sorreda Transport, LLC 

("Sorreda") challenges a final decision of the Federal Motor 

Carrier Safety Administration ("the FMCSA"), an agency within the 

United States Department of Transportation that regulates the 

trucking industry in the United States. The FMCSA determined that 

Sorreda's business safety rating is "unsatisfactory." Sorreda 

argues that the FMCSA's investigation and resulting decision was 

arbitrary and capricious under the Administrative Procedure Act 

("the APA"), 5 U.S.C. § 706(2)(A), and so the agency's decision 

should be set aside. The FMCSA's findings are supported by 

substantial evidence and its determination that Sorreda's business 

safety rating was unsatisfactory was neither arbitrary nor 

capricious under the applicable regulations. We deny the petition 

for review. 

I. 

Sorreda is a small, interstate trucking company owned by 

Evangeline Sebor and located in Bedford, New Hampshire. In May 

2019, the FMCSA initiated a compliance review of Sorreda after 

receiving two complaints through its consumer complaint database. 

The FMCSA completed its investigation in August 2019, which 

included a two-day investigation at Sorreda's place of business 

and additional requests and subpoenas for records. In September 

2019, the FMCSA issued a notice informing Sorreda of its proposed 

unsatisfactory rating, which resulted from an acute violation in 
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one safety factor (General) and critical violations in two other 

safety factors (Driver and Operational). 

Specifically, the FMCSA investigators found that (1) 

Sorreda had falsified a road test for one of its drivers (General), 

see 49 C.F.R. §§ 390.35, 391.51(a), (2) it had not obtained several 

drivers' motor vehicle records within the timeframe required by 

regulation and had failed to maintain medical examiner's 

certificates in several of its drivers' qualification files as 

required by regulation (Driver), see id. § 391.51(a), (b)(2), 

(b)(7), and (3) it had failed to maintain and to retain accurate 

and true time records for several of its drivers and had failed to 

install an electronic logging device to record those entries as 

required by regulation (Operational). See id. §§ 395.1(e), 

395.8(a). The critical violations as to the second and third 

safety factors resulted in unsatisfactory safety ratings for those 

two factors, and unsatisfactory safety ratings in two factors 

automatically results in an overall unsatisfactory safety rating. 

Id. § 385 app. B.III.A(b). A motor carrier with a final safety 

rating of unsatisfactory is prohibited from operating a commercial 

motor vehicle in interstate or intrastate commerce unless it takes 

corrective action to improve its overall safety rating to 

conditional or satisfactory or it successfully appeals its 

proposed unsatisfactory rating through an administrative review 
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with the FMCSA. See 49 U.S.C. § 31144(c), (e); 49 C.F.R. 

§§ 385.13(a), 385.15, 385.17. 

Sorreda chose not to take immediate corrective action 

and instead appealed the proposed unsatisfactory rating to the 

FMCSA. In November 2019, the FMCSA issued a final order denying 

Sorreda's petition for administrative review and concluding that 

Sorreda had failed to prove by a preponderance of the evidence 

that the FMCSA had erred in assigning it an unsatisfactory rating. 

Sorreda filed a timely petition for review in this Court 

pursuant to 28 U.S.C. §§ 2342(3)(A), 2343-44.

II. 

A "court must uphold a decision of the FMCSA unless it 

is 'arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law.'" Darrell Andrews Trucking, Inc. v. 

Fed. Motor Carrier Safety Admin., 296 F.3d 1120, 1124 (D.C. Cir. 

2002) (quoting 5 U.S.C. § 706(2)(A)); cf. Flock v. U.S. Dep't of 

Transp., 840 F.3d 49, 54-55 (1st Cir. 2016). "The scope of review 

under the 'arbitrary and capricious' standard is narrow and a court 

is not to substitute its judgment for that of the agency." Motor 

Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. 

Co., 463 U.S. 29, 43 (1983); see also id. ("[T]he agency must 

examine the relevant data and articulate a satisfactory 

explanation for its action including a 'rational connection 

between the facts found and the choice made.'" (quoting Burlington 
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Truck Lines v. United States, 371 U.S. 156, 168 (1962))). We 

accept an agency's findings so long as they are supported by 

substantial evidence in the record as a whole. See Vieques Air 

Link, Inc. v. U.S. Dep't of Lab., 437 F.3d 102, 104 (1st Cir. 2006) 

("[W]e 'accept the findings and inferences drawn by the ALJ, 

whatever they may be, unless they are irrational,' and respect his 

or her 'prerogative in the first instance to . . . make credibility 

assessments . . . ." (all but first alteration in original) 

(quoting Bath Iron Works Corp. v. U.S. Dep't of Lab., 336 F.3d 51, 

56 (1st Cir. 2003))); see also 5 U.S.C. § 706(2)(E). 

Sorreda first argues that the FMCSA inappropriately 

found that Sorreda had failed to obtain and to maintain motor 

vehicle records in several of its drivers' qualification files. 

Sorreda concedes, however, that it did not obtain the required 

motor vehicle records and place them in the driver qualification 

files for at least two of its drivers within the thirty-day period 

required by regulation. See 49 C.F.R. §§ 391.23(a)-(b), 

391.51(a), (b)(2). 

Furthermore, the agency was correct that the plain 

language of the "good faith" exception to the motor vehicle record 

requirement does not apply to Sorreda's situation because the motor 

vehicle records for the two drivers at issue did in fact exist and 

were eventually received by Sorreda, just not within the timeframe 

set by regulation. See id. § 391.23(b) (providing that "[i]f no 
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motor vehicle record is received from the State or States required 

to submit this response, the motor carrier must document a good 

faith effort to obtain such information, and certify that no record 

exists for that driver in that State or States" (emphasis added)). 

It does not matter that the agency chose to charge Sorreda with a 

critical violation (§ 391.51(b)(2)) rather than a lesser available 

non-critical violation (§ 391.23(b)). Placing the motor vehicle 

record in and maintaining the motor vehicle record in the driver's 

qualification file are separate regulatory requirements, and we 

typically do not question the agency's enforcement discretion. 

See Heckler v. Chaney, 470 U.S. 821, 831 (1985) ("[A]n agency's 

decision not to prosecute or enforce, whether through civil or 

criminal process, is a decision generally committed to an agency's 

absolute discretion."); Mass. Pub. Interest Rsch. Grp., Inc. v. 

U.S. Nuclear Regul. Comm'n, 852 F.2d 9, 19 (1st Cir. 1988); see 

also 5 U.S.C. § 701(a)(2) (providing that "agency action . . . 

committed to agency discretion by law" is unreviewable under the 

APA). 

Sorreda next argues that the FMCSA acted arbitrarily in 

finding that Sorreda had failed to maintain the required medical 

examiner's certificates in several of its drivers' qualification 

files. See 49 C.F.R. § 391.51(a), (b)(7). It argues that the 

agency erred in crediting the FMCSA investigators' version of 
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events rather than Sorreda's.1 We respect the agency's credibility 

determination and conclude that it is supported by substantial 

evidence in the record. Both investigators attested that medical 

examiner's certificates were missing from several of the drivers' 

physical qualification files that Sebor had provided. They also 

attested that, while Sebor had shown the investigators an 

unauthenticated photograph of one of the driver's medical 

examiner's certificates on her cell phone, she at no time during 

the compliance review mentioned she maintained that driver 

qualification information electronically. They further attested 

that they requested copies of the medical examiner's certificates 

from Sebor and she never provided them. The failure to provide 

evidence at the time of the compliance review that Sorreda 

maintained medical examiner's certificates in the drivers' 

qualification files was sufficient to find that it had violated 

§ 391.51(b)(7).2

1 The investigators state that they had requested the 

missing medical examiner's certificates but never received them, 

while Sorreda asserts that Sebor had offered to provide copies of 

the missing medical examiner's certificates to the investigators 

but they refused the offer. 

2 It is irrelevant that Sorreda submitted the medical 

examiner's certificates as part of its administrative appeal of 

the FMCSA's decision because that does not prove they were 

maintained in the drivers' qualification files at the time of the 

compliance review.
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Finally, Sorreda argues that the FMCSA arbitrarily found 

it had violated 49 C.F.R. § 395.8(a)(1)(i) by failing to install 

or requiring drivers to record their duty status on an electronic 

logging device. Sorreda argues that it was exempt from this 

requirement under the "short-haul exemption." See id. § 395.1(e). 

To qualify for this exemption from § 395.8, the motor carrier must 

satisfy several requirements, including "maintain[ing] and 

retain[ing] for a period of 6 months accurate and true time records 

showing" the drivers' hours of duty. Id. § 395.1(e)(2)(v). During 

the compliance review, FMCSA investigators examined a sample of 

sixty driver time records and found that all sixty time records 

were not true and accurate. These records pertained to three 

drivers. On appeal the FMCSA considered only the twenty-four 

violations related to one driver, Matthew White, whom Sorreda fired 

for violation of various policies after only three months of 

employment. Because these twenty-four violations constituted at 

least ten percent of the sixty documents reviewed, the FMCSA found 

they were sufficient to establish a "pattern of noncompliance" 

with § 395.8(a)(1)(i), resulting in an "unsatisfactory" rating. 

See id. § 385 app. B.II(g)–(h), B.II.C(b) (defining "pattern of 

noncompliance with a critical regulation"). The FMCSA did not 

address the accuracy of the other two drivers' records. 

Sorreda concedes that one of its drivers submitted 

inaccurate records of his duty status numerous times, which was 
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sufficient to find that Sorreda did not qualify for the short-haul 

exemption and so was required to have its drivers record their 

duty status on an electronic logging device. Sorreda cannot avoid 

its obligation to comply with the FMCSA's safety regulations by 

shifting the blame to its employee for its noncompliance. See In 

re Berg Grain & Produce, Inc., Docket No. FMCSA-2010-0278, 2015 WL 

6848568, at *3-4 (Nov. 5, 2015). Nor does it matter that the FMCSA 

could have charged Sorreda with a different regulatory violation 

for "mak[ing] a false report in connection with a duty status." 

49 C.F.R. § 395.8(e). Sorreda still violated § 395.8(a)(1)(i) and 

this enforcement decision was within the agency's discretion. See 

Heckler, 470 U.S. at 831; Mass. Pub. Interest Research Grp., Inc., 

852 F.2d at 19. 

The FMCSA's findings and conclusions are supported by 

substantial evidence in the record and its decision denying 

Sorreda's petition for review is not arbitrary or capricious.3

Petition for review denied. 

3 This does not mean that Sorreda's business is shut down 

permanently. It can still rectify the identified deficiencies in 

its safety standards and request a change in its safety rating at 

any time pursuant to 49 C.F.R. § 385.17.