United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 9, 2015 Decided January 15, 2016

No. 14-1298

SILVERADO STAGES, INC.,

PETITIONER

v.

FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION AND 

UNITED STATES OF AMERICA,

RESPONDENTS

On Petition for Review of an Order of the 

Federal Motor Carrier Safety Administration

William H. Shawn argued the cause and filed the briefs 

for petitioner.

Gerard Sinzdak, Attorney, U.S. Department of Justice, 

argued the cause for respondents. With him on the brief were 

Benjamin C. Mizer, Principal Deputy Assistant Attorney 

General, and Matthew M. Collette, Attorney.

Before: ROGERS, TATEL and WILKINS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKINS.
2

WILKINS, Circuit Judge: Petitioner Silverado Stages, 

Inc., a California charter bus service, petitions this Court for 

review of a Federal Motor Carrier Safety Administration 

(“FMCSA”) determination denying Silverado’s petition for 

administrative review after the FMCSA publicly reported that

Silverado violated a number of federal and state safety 

regulations. Because some of Silverado’s claims should have 

been brought before the District Court, and we find those 

properly before us meritless, we deny Silverado’s petition. 

I.

A.

Congress requires the Department of Transportation 

(“DOT”) to “determine whether an owner or operator is fit to 

operate safely commercial motor vehicles,” based upon,

among other things, “the safety inspection record of such 

owner or operator.” 49 U.S.C. § 31144(a)(1). DOT is also 

required to “make such final safety fitness determinations 

readily available to the public.” Id. § 31144(a)(3). DOT has 

delegated these responsibilities to the FMCSA. See 49 C.F.R. 

§ 1.86 (listing the overall responsibilities of the FMCSA).

The standards and procedures the FMCSA uses to 

determine the safety of motor carriers such as Silverado is 

provided in 49 C.F.R. § 385 et seq. See id. § 385.1(a) (“This 

part establishes the FMCSA’s procedures to determine the 

safety fitness of motor carriers, to assign safety ratings, to 

direct motor carriers to take remedial action when required, 

and to prohibit motor carriers receiving a safety rating of 

‘unsatisfactory’ from operating a [commercial motor 

vehicle].”). These procedures require the FMCSA to assign 

each carrier a safety rating based on an on-site examination of 

that carrier’s operations. See id. § 385.9 (describing the 

procedure for assigning a safety rating). The result of that 
3

examination is twofold. First, the FMCSA issues violations 

to carriers found to be out of compliance with pertinent safety 

regulations. See id. pt. 385, App. A (explaining the safety 

audit evaluation process). The FMCSA may seek civil 

penalties for such violations. See 49 U.S.C. § 521(b); 49 

C.F.R. § 386.11(c). Second, based on these violations, as 

well as other factors such as the carrier’s accident history, see 

49 C.F.R. § 385.7, the FMCSA assigns carriers one of three 

ratings: “satisfactory,” “conditional,” or “unsatisfactory,” id.

§ 385.3. An “unsatisfactory” rating precludes a carrier from 

operating a commercial motor vehicle in interstate commerce. 

49 U.S.C. § 31144(c); 49 C.F.R. § 385.13. 

A carrier may petition the FMCSA to review its safety 

rating pursuant to 49 C.F.R. § 385.15. The agency will adjust 

the carrier’s rating if it finds that it made “an error in 

assigning [the carrier’s] proposed or final safety rating.” Id.

§ 385.15(a). Because the FMCSA uses the § 385.15 review 

process to review only a carrier’s safety rating, the FMCSA 

typically will not review the validity of carrier safety 

violations as a part of that process. See FMCSA Order 

Dismissing Pet. For Admin. Review of Safety Rating 

(“FMCSA Order”), J.A. 13 (“In a petition filed under 49 CFR 

385.15, the only relief afforded for any alleged errors in 

calculating a safety rating is an upgrade of Petitioner’s safety 

rating. Therefore, only errors affecting a safety rating will be 

addressed in a 49 CFR 385.15 proceeding.”). The FMCSA 

will review a carrier’s safety violations, in addition to the 

safety rating itself, when, and only when, the agency is 

reviewing a carrier’s appeal of a less-than-“satisfactory” 

rating, and only if it is necessary to determine whether the 

FMCSA should change the carrier’s rating. See Resp’t’s Br. 

18 n.2 (“To be clear, a carrier who received a ‘conditional’ or 

‘unsatisfactory’ rating can challenge particular violations in 

the course of a § 385.15 proceeding, and FMCSA will correct 
4

violation information during that proceeding if the correction 

is necessary to its decision to upgrade a carrier’s safety 

rating.”).

The FMCSA provides information to the public about 

operating motor carriers through a searchable, web-based 

information database called the Safety Measurement System 

(“SMS”). See Safety Measurement System, FED. MOTOR 

CARRIER SAFETY ADMIN., https://ai.fmcsa.dot.gov/sms/ (last 

visited January 5, 2016). A carrier’s SMS profile displays the 

carrier’s overall safety rating, as well as specific information 

about violations that either the FMCSA or other agencies

have issued against that carrier. These violations are grouped 

into seven categories, each of which is represented by a large 

icon displayed on the front page of the carrier’s profile. If an

agency has issued certain violations against the carrier within 

a given category, a large, yellow warning triangle is placed on 

top of that category icon.1 The FMCSA uses the SMS to 

collect violation information from a variety of sources, 

including the separate but related Motor Carrier Management 

Information System (“MCMIS”), to determine which carriers 

should be prioritized for inspections. See 79 Fed. Reg. 

32,491, 32491-92 (June 5, 2014); 75 Fed. Reg. 18,256, 18,258 

(Apr. 9, 2010).

To maintain the accuracy of the information displayed 

within the SMS, the FMCSA has created DataQs, “a web-

 1 More specifically, the FMCSA explains on each carrier’s SMS 

profile that the warning triangles denote that the carrier “exceeds 

the FMCSA Intervention threshold relative to its safety event 

grouping based upon roadside data and/or has been cited with one 

or more serious violations within the past 12 months during an 

investigation.” J.A. 94. Although warning triangles are removed 

from the carrier’s main SMS page after the requisite period, they 

remain visible on the carrier’s SMS history page. See J.A. 145-46. 
5

based dispute resolution [system] that allows an individual to 

challenge data maintained by FMCSA.” Weaver v. FMCSA, 

744 F.3d 142, 143 (D.C. Cir. 2014) (internal quotation marks 

omitted). The FMCSA allows carriers to use DataQs to 

challenge those safety violations that the FMCSA will not 

review through its § 385.15 process. See 79 Fed. Reg. at

32,492 (“A driver has always been able to challenge the 

correctness of a violation that has been cited in a roadside 

inspection report using the DataQs system, whether a citation 

has been issued for that violation or not.”). DataQs users 

submit their requests for review by filling in text fields in a 

web application. See DataQs Analyst Guide § 3.1, available 

at https://dataqs.fmcsa.dot.gov/Data/Guide/DataQs_Users_Gu

ide_and_Best_Practices_Manual.pdf. (providing background 

on the DataQs system). DataQs also permits users to provide 

additional information by submitting digital documents. See 

Resp’t’s Br. 16 (“[C]arriers are not only permitted, but 

encouraged to submit as much supporting documentation as 

they can when filing a DataQs request.” (citing DataQs 

Analyst Guide, supra, §§ 4.13-4.16)). 

B.

The FMCSA initiated an on-site examination of 

Silverado’s operations in April 2014. In June 2014, after 

completing that review, the FMCSA found Silverado to have 

violated a number of safety regulations. See J.A. 49-69. 

Notwithstanding these violations, the FMCSA issued 

Silverado a “satisfactory” rating, the highest rating available, 

presumably because the violations Silverado received were 

not substantial enough to warrant a lower rating. The 

FMCSA included these violations on Silverado’s SMS 

profile, which resulted in the imposition of warning triangles 
6

over four of the seven categories displayed on Silverado’s

profile. See J.A. 96.

2

Silverado claims that the public display of these allegedly 

erroneous violations has caused it to lose several high-value 

contracts. 

Silverado filed a § 385.15 petition with the FMCSA in 

October 2014. The petition did not challenge Silverado’s 

“satisfactory” rating; it alleged only that the violations 

displayed on its SMS profile were erroneous. The FMCSA 

dismissed Silverado’s petition, stating that “[i]n a petition 

filed under 49 CFR 385.15, the only relief afforded for any 

alleged errors in calculating a safety rating is an upgrade of 

Petitioner’s safety rating.” FMCSA Order, J.A. 13. The 

agency explained that “[c]hallenges to the impact of the 

compliance review data [i.e., Silverado’s safety violations] on 

the SMS [profile] are not within the subject matter 

jurisdiction of a request for administrative review of a safety 

rating under 49 C.F.R. 385.15.” Id. 

Silverado filed a petition for our review of the FMCSA’s 

dismissal on December 23, 2014. Several months later, in 

March 2015, Silverado submitted a number of DataQs 

requests, urging the FMCSA to remove the allegedly 

erroneous violations posted on its SMS profile. 

 2 Silverado’s profile later displayed only three warning triangles 

after the FMCSA removed the alleged violations listed under the

“Hours-of-Service Compliance” category. See J.A. 94; see also

Pet’r’s Opening Br. 6 (displaying a screen grab of Silverado’s SMS 

web profile). 
7

II.

Silverado’s petition for review boils down to two 

arguments. First, Silverado contests the FMCSA’s dismissal

of Silverado’s § 385.15 petition by arguing that the dismissal 

was arbitrary and capricious under the Administrative 

Procedure Act (“APA”), 5 U.S.C. § 706.

3

 Second, it contends 

that the violations issued against it are invalid because they 

were not promulgated pursuant to notice-and-comment 

procedures and because they constitute impermissible 

sanctions. The first of these arguments lacks merit because 

the FMCSA was not required to provide Silverado with any 

more process than it received; the second is foreclosed by our 

decision in Weaver, 744 F.3d at 144-48. 

A.

Before reaching these arguments, however, we pause to 

address Silverado’s criticism of the FMCSA’s DataQs system, 

which runs throughout Silverado’s briefing. Silverado calls it 

a “Twitter-like void,” Pet’r’s Opening Br. 22, and “opaque,” 

Pet’r’s Reply Br. 8. It also complains that “there is no time 

limit or other requirements obligating the charging state 

organization to respond” to DataQs requests. Pet’r’s Opening 

Br. 22. Although the FMCSA contests much of Silverado’s 

criticism, see, e.g., Resp’t’s Br. 15-16 (arguing that DataQs is 

not a “twitter-like void” because “carriers . . . face no word 

limitations” and are “encouraged to submit as much 

 3 Silverado also claims that the FMCSA violated its “administrative 

due process rights.” See, e.g., Pet’r’s Opening Br. 22, 26. Yet it 

does not explain from where it derives such a right, or how the 

alleged violation differs from its claim that the FMCSA acted 

arbitrarily and capriciously. Accordingly, we will treat Silverado’s 

discussion of “administrative due process” as part and parcel of its 

arbitrary and capricious claim under 5 U.S.C. § 706. 
8

supporting documentations as they can”), at oral argument, 

the FMCSA acknowledged that there is no deadline by which 

the FMCSA must respond to a DataQs request. In fact, 

Silverado submitted its DataQs requests in March 2015 –

more than nine months ago – yet the FMCSA has not 

responded to a number of Silverado’s requests. 

Despite this criticism, Silverado explicitly states in its 

reply brief that “[t]his is not an appeal of or collateral attack 

upon the FMCSA’s DataQ and its deficiencies; rather, this 

appeal is a challenge to Respondent FMCSA’s failure to 

correct its damaging and erroneous SMS violations . . . .” 

Pet’r’s Reply Br. 1; see also id. at 5 (titling a section 

“Silverado Did Not Challenge and Need Not Have 

Challenged SMS and DataQ in Its 385.15 Petition Below”). 

Nor could Silverado mount a challenge to the DataQs system

in this proceeding. The record indicates that Silverado did not 

submit its DataQs requests until approximately three months 

after it petitioned this Court for review of the FMCSA’s order 

denying Silverado’s § 385.15 petition. See Ass’n of Flight 

Attendants-CWA v. Chao, 493 F.3d 155, 158 (D.C. Cir. 2007) 

(“[N]o one is entitled to judicial relief for a supposed or 

threatened injury until the prescribed administrative remedy 

has been exhausted.” (quoting Myers v. Bethlehem 

Shipbuilding Corp., 303 U.S. 41, 50-51 (1938))); cf.

Unemployment Comp. Comm’n v. Aragon, 329 U.S. 143, 155 

(1946) (“A reviewing court usurps the agency’s function 

when it sets aside the administrative determination upon a 

ground not theretofore presented . . . .”); Hinson v. NTSB, 57 

F.3d 1144, 1149 (D.C. Cir. 1995) (“[I]n most circumstances a 

reviewing court should not adjudicate issues not raised in the 

administrative proceeding below, so that the agency has an 

opportunity to consider and resolve the objections prior to 

judicial review, and the reviewing court has the benefit of a 
9

full record.” (citing United States v. L.A. Tucker Truck Lines, 

Inc., 344 U.S. 33, 36-37 (1952))).

Because Silverado is not challenging the validity or 

effectiveness of the DataQs system, we will assume, for the 

purposes of Silverado’s petition, that the DataQs system 

provides carriers with an adequate process for achieving 

review over the information displayed on SMS profiles.4

B.

 Silverado’s arbitrary and capricious claim relies on a 

flawed fundamental premise: that the FMCSA’s refusal to 

review safety violations within the confines of a § 385.15 

petition is impermissible because it “exempt[s] an entire class 

of on-line summary violations of law from any pre-or-postviolation challenge by the alleged violator.” Pet’r’s Opening 

Br. 20.

Silverado’s claim must fail because that fundamental 

premise is incorrect. The DataQs process is not exempt from 

challenge; carriers are provided with an opportunity to appeal 

and correct erroneous violations. See DataQs Analyst Guide, 

 4 Certainly, because the DataQs process is the only means by which 

motor carriers can receive review over certain potentially erroneous 

violations – violations which are publicly displayed on the 

FMCSA’s website – we expect that the FMCSA will be particularly 

mindful of complaints such as Silverado’s, and will work to ensure 

that motor carriers receive appropriate responses to their DataQs 

requests in a timely fashion. Should the FMCSA fail to respond in 

a timely fashion, carriers such as Silverado may seek a writ of 

mandamus compelling agency action. See, e.g., In re Am. Rivers &

Idaho Rivers United, 372 F.3d 413, 418-20 (D.C. Cir. 2004) 

(granting mandamus where the agency had failed to respond to a 

petition under the Endangered Species Act for a significant period 

of time). 
10

supra, § 3.2 (explaining that carriers may use the DataQs 

system to “request the review of various types of data 

including . . . data documented during a roadside safety 

inspection” and “data collected during investigations”); 79 

Fed. Reg. at 32,492. 

Moreover, an agency’s interpretation of its own 

regulations is generally “controlling unless plainly erroneous 

or inconsistent with the regulation.” Auer v. Robbins, 519 

U.S. 452, 461 (1997) (internal quotation marks omitted). 

Here, the FMCSA has interpreted § 385.15 to permit only 

those petitions that seek review of a carrier’s safety rating and 

not its individual safety violations. This is a reasonable 

interpretation. The consequences of a less-than-“satisfactory” 

rating can be severe – most notably by precluding the carrier 

from operating in interstate commerce. See 49 U.S.C. 

§ 31144(c)(1); 49 C.F.R. § 385.13. It is therefore sensible for 

the FMCSA to prioritize review for those carriers with subpar ratings; it ensures that the FMCSA’s compliance review 

process precludes only those carriers that should, in fact, be 

kept from operating. Carriers with satisfactory ratings may 

still have their violations reviewed; they simply must use the 

DataQs system, rather than the § 385.15 review process, to do 

so. 

C.

Silverado’s remaining argument – that the FMCSA, in 

issuing safety violations against Silverado, failed to comply

with notice-and-comment procedures and levied 

impermissible sanctions against it – is not properly before this 

Court. According to our decision in Weaver, such challenges 

must be brought in the first instance before the District Court. 

In Weaver, petitioners challenged the FMCSA’s refusal 

to remove a safety violation contained in an individual 
11

driver’s MCMIS profile after petitioners filed a DataQs 

request with the FMCSA seeking the violation’s removal. See 

744 F.3d at 143-44. Petitioners brought their challenge to the 

FMCSA’s refusal directly to this Court pursuant to the Hobbs 

Act, 28 U.S.C. § 2342, which provides this Court with 

exclusive jurisdiction over a determination that concerns, 

among other things, the validity of “all rules, regulations or 

final orders” of the FMCSA. 28 U.S.C. § 2342(3); see also 

Weaver, 744 F.3d at 144-45; Am. Trucking Ass’ns, Inc. v. 

FMCSA, 724 F.3d 243, 246 (D.C. Cir. 2013). We held that the 

FMCSA’s refusal to remove the carrier’s violation did not 

constitute a final agency action under the Hobbs Act, and that 

therefore petitioners needed to bring their challenge in the 

District Court. Weaver, 744 F.3d at 146-48. 

Following Weaver, we hold that Silverado’s challenge to 

its safety violations must also be brought initially before the 

District Court. Accordingly, we lack authority to hear 

Silverado’s safety violations challenge. 

***

For the foregoing reasons, we deny the petition for 

review.

So ordered.