United States Court of Appeals 

For the First Circuit 

No. 15-2310 

THOMAS O. FLOCK, ET AL., 

Plaintiffs, Appellants, 

v. 

UNITED STATES DEPARTMENT OF TRANSPORTATION, ET AL., 

Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. F. Dennis Saylor, IV, U.S. District Judge] 

Before 

Lynch, Stahl, and Thompson, 

Circuit Judges 

 Paul D. Cullen, Sr., with whom Joyce E. Mayers, Paul D. 

Cullen, Jr., The Cullen Law Firm, PLLC, and John A. Kiernan, 

Bonner, Kiernan, Trebach & Crociata, LLP 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. 

October 21, 2016 
- 1 - 

STAHL, Circuit Judge. 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 nonserious violations or, in the alternative, were coercive in that 
- 2 - 

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 (1984). This appeal followed. After oral argument and careful 

consideration, we AFFIRM. 

I. 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 
- 3 - 

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 driverrelated safety violation inspection reports. 

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 
- 4 - 

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 nonserious violations runs afoul of the Privacy Act, which contains 

"a comprehensive and detailed set of requirements for the 
- 5 - 

management of confidential records held by Executive Branch 

agencies." F.A.A. v. Cooper, 132 S. Ct. 1441, 1446 (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 (1984). This appeal followed. 

II. Discussion 

 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 
- 6 - 

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 (2007). 

A. Standing 

 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 (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, 133 S. Ct. 1138, 1147 (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). 
- 7 - 

 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. 

 B. The Agency's Interpretation under Chevron

 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 (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. 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. 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 
- 8 - 

United States v. Mead Corp., 533 U.S. 218, 229 (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."). 

 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., 133 S. Ct. 1863, 

1868 (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). 

 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. 
- 9 - 

235, 244 (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. 

 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. 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 
- 10 - 

condition."). Indeed, the disclosure of other non-serious driverrelated 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 driveremployees 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. 

 C. Consent Forms under the Privacy Act 

 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 

 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. 
- 11 - 

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" driverrelated 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. 

 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 
- 12 - 

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.