             Case: 17-14670    Date Filed: 05/09/2019   Page: 1 of 13


                                                                        [PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 17-14670
                          ________________________

                   D.C. Docket No. 1:16-cv-00876-WKW-TFM

FLAT CREEK TRANSPORTATION, LLC,
an Alabama limited liability company,

                                                              Plaintiff - Appellant,

                                      versus

FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION,
KENNY PRICE,
in his capacity as Alabama Division Administrator
(Federal Motor Carrier Safety Administration),
ELAINE L. CHAO,
in her capacity as Secretary of the United States Department of Transportation,

                                                           Defendants - Appellees,

ANTHONY R. FOXX,
in his capacity as Secretary of the United States Department of Transportation,

                                                                        Defendant.
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                              ________________________

                      Appeal from the United States District Court
                          for the Middle District of Alabama
                            ________________________
                                    (May 9, 2019)

Before TJOFLAT, NEWSOM, and GILMAN, * Circuit Judges.

NEWSOM, Circuit Judge:

       Flat Creek Transportation sued for declaratory and injunctive relief on the

ground that the Federal Motor Carrier Safety Administration had unfairly targeted

it for compliance reviews and used an unsound methodology in doing so. The

district court determined that it lacked subject matter jurisdiction to consider Flat

Creek’s claims. We reach the same destination, albeit by a different route. We

hold that Flat Creek has failed to establish that it suffered an injury in fact

sufficient to confer standing to sue.

                                               I

       Flat Creek is a commercial trucking company that transports non-hazardous

materials—mainly refrigerated food products. Because it operates in interstate

commerce, Flat Creek is subject to Department of Transportation regulations. And

because its claim in this case arises against the backdrop of that regulatory




*
 Honorable Ronald L. Gilman, United States Circuit Judge for the Sixth Circuit, sitting by
designation.

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framework, we begin with an overview. (Warning: Unavoidable Acronyms

Ahead.)

                                          A

      Within the Department of Transportation, the Federal Motor Carrier Safety

Administration (“FMCSA”) investigates carriers and operators to ensure that they

are safe to operate on the nation’s roadways. FMCSA uses a safety-fitness rating

methodology—the Safety Measurement System (“SMS”)—to quantify carriers’

performance. For example, the SMS pulls data from the Motor Carrier

Management Information System (“MCMIS”) related to the following metrics: (1)

unsafe driving, (2) fatigued driving, (3) driver fitness, (4) controlled-substance and

alcohol usage, (5) vehicle maintenance, (6) hazardous-material compliance, and (7)

crash history. See 75 Fed. Reg. 18256, 18258 (April 9, 2010). A carrier is given a

weighted score in each category, and then ranked against other carriers. A non-

passenger carrier like Flat Creek will receive a “High Risk” designation only if it

both (1) has “not received an onsite investigation in the previous 18 months” and

(2) scores at or above the 90th percentile for two consecutive months in two or

more of the MCMIS categories “most closely correlated with crash risk”: unsafe

driving, fatigued driving, vehicle maintenance, and crash history. See 81 Fed. Reg.

11875–11876 Table 2 (March 7, 2016).




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      This “High Risk” designation matters to carriers because FMCSA

concentrates its compliance-review resources on high-risk carriers. A compliance

review is an in-depth “on-site investigation of the carrier’s operations” that

examines the carrier’s compliance with FMCSA regulations. 49 C.F.R. § 385.3;

see generally 49 C.F.R. § 350 et seq. During a compliance review, an investigator

will commonly check driver-qualification files, records of duty status (basically, a

measure of the number of hours a driver works per 24-hour day), and vehicle-

maintenance data. Within 30 days of the review, FMCSA is required to give the

carrier written notice that it has received one of three safety ratings: Satisfactory,

Conditional, or Unsatisfactory. 49 C.F.R. §§ 385.3, 385.11(a).

      Safety ratings become “final” in slightly different ways. A Satisfactory

rating, the highest possible, is final and effective on the date of notice. 49 C.F.R.

§ 385.11(b). A Conditional or Unsatisfactory rating becomes final after 60 days if

it is not upgraded or overturned. Id. § 385.11(c). If a carrier seeks administrative

review of an Unsatisfactory or Conditional rating, FMCSA’s Chief Safety Officer

must issue a written decision, which will constitute final agency action. Id.

§ 385.15. Alternatively, a carrier can take corrective action to remedy a reported

defect and then request an upgrade from FMCSA. Id. § 385.11(f). If a carrier

receives a final Unsatisfactory safety rating, it is prohibited from operating. Id.

§ 385.13(a).


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      Naturally, commercial carriers don’t particularly want a “High Risk”

designation—because it increases their odds of a compliance review, which in turn

increases the odds of suffering an Unsatisfactory safety rating. To address carriers’

concerns about the accuracy of the data that factor into the MCMIS system and

that can prompt a high-risk designation, FMCSA operates DataQs, an online

system that permits carriers to contest those data. See FMCSA Notice to Amend a

System of Records, 77 Fed. Reg. 42548-02, 42551 (July 19, 2012).

                                          B

      Flat Creek’s managing member is Charles Patterson Sr.; Charles’ son,

Charles Patterson Jr., formed and operates a separate trucking company, Liberty

Express. In July 2016, FMCSA’s Alabama Division conducted a compliance

review of Liberty. Flat Creek alleges that during Liberty’s review, FMCSA agents

asked a bunch of questions about Flat Creek. Not long after, Flat Creek says, its

regulatory consultant “received surreptitious reports from confidential informant(s)

that agents … planned an unannounced on-site compliance investigation at Flat

Creek with the intent to falsely charge Flat Creek with multiple regulatory

violations sufficient to … forc[e] a cessation of Flat Creek’s operations and likely

leading to business closure.” Br. of Appellant at 8–9.

      Flat Creek further asserts that it received “flawed” scores and misleading

crash indicators from the MCMIS data, which FMCSA failed to keep “complete,


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timely, and accurate” as required by 49 U.S.C. § 31106(a)(3)(F). Flat Creek insists

that, contrary to the MCMIS data, the company’s industry performance was above

average. Because of the allegedly false data, Flat Creek contends that it “has been

consistently but illegally targeted and harassed with multiple unwanted

interventions by FMCSA agents.” Compl. at ¶ 47. It points to three specific

events: an allegedly false Notice of Violation on October 6, 2011; another of the

same, on August 10, 2012; and an unfavorable compliance-review report on June

15, 2015. And even before those three instances, Flat Creek alleges that it was

subject to “an unusually high number of [compliance review] interventions.” Id. at

¶ 48. Most provocatively, Flat Creek further asserts that FMCSA’s adverse

regulatory actions were taken in part due to “on[going] prejudice and bias” against

Patterson Sr. Compl. at ¶ 58.

      Flat Creek admits that none of the additional compliance reviews “resulted

in a safety rating less than ‘Satisfactory.’”

                                           C

      Flat Creek filed a complaint seeking declaratory and injunctive relief under

the Administrative Procedure Act, 5 U.S.C. § 500 et seq. (2000). FMCSA

responded with a motion to dismiss for lack of subject matter jurisdiction pursuant

to Federal Rule of Civil Procedure 12(b)(1). While the motion to dismiss was

pending, Flat Creek received a letter from FMCSA’s Alabama Division notifying it


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of an impending on-site compliance review. Seeking to head off that review, Flat

Creek filed an emergency motion for a preliminary injunction. Flat Creek’s

motion was denied, and the review went ahead as scheduled.

       Following the compliance review, FMCSA initially advised Flat Creek that

its safety rating would be downgraded from Satisfactory to Conditional. FMCSA

argued to the district court that the case was unripe because the new Conditional

rating was not yet final. A month later, however, FMCSA notified the district

court that the agency had reviewed Flat Creek’s downgraded safety rating sua

sponte, removed a violation incorrectly included in the calculation, and restored the

rating to Satisfactory. 1

       The district court granted FMCSA’s Rule 12(b)(1) motion on the ground that

the Hobbs Act, 28 U.S.C. § 2342(3)(A), vested the courts of appeals with exclusive




1
  Because Flat Creek’s safety rating was upgraded during the course of this litigation, its most
recent “Satisfactory” mark is not reflected in its complaint. Flat Creek contends that the district
court erred when it said that it was engaging in a “facial attack” analysis of subject matter
jurisdiction—which limits a court to a plaintiff’s allegations—and then proceeded to look
beyond the complaint for proof that Flat Creek ultimately received a “Satisfactory” rating.
Ranging beyond the complaint, Flat Creek asserts, is permissible only in the case of a “factual
attack” on subject matter jurisdiction. See Garcia v. Copenhaver, Bell & Assoc., 104 F.3d 1256,
1260–61 (11th Cir. 1997) (citing Lawrence v. Dunbar, 919 F.2d 1525, 1528–29 (11th Cir.
1990)). But, where the extra-complaint fact does not implicate the merits of the plaintiff’s case,
“the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to
hear the case.” Garcia, 104 F.3d at 1261 (quoting Lawrence, 919 F.2d at 1529). Moreover, and
in any event—and dispositively here—the fact that Flat Creek’s safety rating is now
“Satisfactory” is undisputed. See Br. of Appellant at 21 (“Flat Creek’s … “Satisfactory” safety
rating [is] ultimately the result of the March 28, 2017 compliance review.”).

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jurisdiction to provide Flat Creek the injunctive relief that it had requested. 2 We

find it unnecessary to decide the Hobbs Act question, because we conclude that

Flat Creek has failed to establish standing to sue.

                                                II

       We review de novo whether a party has standing. See Perry v. Cable News

Network, Inc., 854 F.3d 1336, 1339 (11th Cir. 2017). Flat Creek contends that it

has standing to sue because it was injured in two ways: first, its most recent safety

rating—which originally came back “Conditional” but was thereafter upgraded to

“Satisfactory”—and second, by the ongoing potential for agency bias in the

conduct of compliance reviews. We hold that the injuries that Flat Creek alleges

do not establish the requisite standing.

       The doctrine of standing is “an essential and unchanging part” of the case-

or-controversy requirement embodied in Article III of the Constitution. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992). The “‘irreducible constitutional



2
 Not that Hobbs Act. See 18 U.S.C. § 1951. This one vests exclusive jurisdiction in the courts
of appeals

       to enjoin, set aside, suspend (in whole or in part), or to determine the validity of
       … all rules, regulations, or final orders of the Secretary of Transportation issued
       … pursuant to part B or C of subtitle IV, subchapter III of chapter 311, chapter
       313, or chapter 315 of title 49.

28 U.S.C. § 2342(3)(A) (emphasis added). The question that we excuse ourselves from deciding
today is whether Flat Creek’s challenges are sufficiently broad that they, in effect, contest the
validity of an agency rule, regulation, or final order.

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minimum’ of standing” requires a plaintiff to show that he “(1) suffered an injury

in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and

(3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v.

Robins, 136 S. Ct. 1540, 1547 (2016) (quoting Lujan, 504 U.S. at 560–61). “The

plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing

these elements.” Id. And because standing doctrine is intended to “confine[] the

federal courts to a properly judicial role,” id., we take seriously the requirement

that a plaintiff clearly demonstrate each requirement. Finally, and importantly

here, the Supreme Court has made clear that “Article III demands that an ‘actual

controversy’ persist throughout all stages of litigation” and, therefore, that standing

requirements “must be met by persons seeking appellate review, just as [they] must

be met by persons appearing in courts of first instance.” Hollingsworth v. Perry,

570 U.S. 693, 705 (2013) (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 90–91

(2013), and Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997)).

      “First and foremost” among the standing doctrine’s requirements is “injury

in fact.” Spokeo, 136 S. Ct. at 1547 (quoting Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 103 (1998)). In order to satisfy the injury-in-fact requirement,

“a plaintiff must show that he or she suffered ‘an invasion of a legally protected

interest’” that is both (1) “‘concrete and particularized’” and (2) “‘actual or

imminent.’” Id. at 1548 (quoting Lujan, 504 U.S. at 560). For an injury to be


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“concrete,” “it must actually exist”—that is, it must be “‘real,’ and not ‘abstract.’”

Id. (quoting Webster’s Third New International Dictionary 472 (1971)). And for

an injury to be “particularized,” “it ‘must affect the plaintiff in a personal and

individual way.’” Id. (quoting Lujan, 504 U.S. at 560).

       Flat Creek’s allegations don’t meet the constitutional standard. To begin

with the most obvious point, Flat Creek has no standing to pursue its once-upon-a-

time pre-enforcement effort to prevent FMCSA from conducting a compliance

review. While Flat Creek’s case was pending in the district court, the compliance

review went forward, and all now agree that Flat Creek received a Satisfactory

safety rating, the highest possible mark. Flat Creek certainly suffered no

cognizable injury as a result of a passing rating. See Ezzell Trucking, Inc. v. Fed.

Motor Carrier Safety Admin., 309 F.3d 24, 25–26 (D.C. Cir. 2002) (dismissing

carrier’s challenge for lack of standing under similar circumstances).3

       Separately, and notwithstanding its Satisfactory rating, Flat Creek alleges

that it continues to suffer present injury because it remains subject to an enhanced

threat of future compliance reviews at the hands of (in its view) a biased agency.

In particular, Flat Creek asserts that FMCSA has an “improper on[going] prejudice



3
  Alternatively, one might view this aspect of Flat Creek’s lawsuit as moot, in that it “no longer
present[s] a case or controversy under Article III, § 2 of the Constitution”—as it must “through
all stages of federal judicial proceedings, trial and appellate.” Spencer v. Kemna, 523 U.S. 1, 7
(1998).

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and bias against [Charles] Patterson, Sr. and Flat Creek” and that FMCSA will use

future compliance reviews “as a pretext for [its] real but illegal purpose of

fabricating regulatory violations” and ultimately “terminating Flat Creek’s

operations.” Compl. at ¶¶ 58–59. These allegations fail to satisfy the

constitutional test. The injury that Flat Creek asserts—designation as a “High

Risk” carrier, subject to an increased likelihood of compliance reviews—is neither

“concrete” nor “imminent,” but rather “conjectural” and “hypothetical.” Spokeo,

136 S. Ct. at 1548. That is so for two related reasons. First, as a matter of sheer

timing, Flat Creek can’t be designated “High Risk” for a full 18 months after an

onsite investigation. See FMCSA Notification of Changes to the Definition of High

Risk Motor Carrier, 81 Fed. Reg. 11875, 11875 (March 6, 2016) (“Non-passenger

carriers are considered ‘High Risk’ if they have two or more” safety categories “at

or above the 90th percentile for two consecutive months and they have not

received an onsite investigation in the previous 18 months.” (emphasis added)).

As already noted, during the course of this litigation, in April 2017, the

Administration conducted an onsite investigation of Flat Creek—meaning that Flat

Creek wasn’t even eligible for a “High Risk” classification until October 2018.

Flat Creek has given us no indication during the pendency of this appeal that any

such contingency has materialized. Cf. Whitmore v. Arkansas, 495 U.S. 149, 158




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(1990) (holding that “[a]llegations of possible future injury” do not confer Article

III standing).

       Second, even after the 18-month period runs, a carrier can be deemed “High

Risk” only if additional conditions obtain. In particular, before a carrier can be

designated “High Risk,” it must be determined that the carrier scores at or above

the 90th percentile on two of the following metrics: (1) unsafe driving, (2) fatigued

driving, (3) vehicle maintenance, and (4) crash history. See 81 Fed. Reg. 11875,

11876 Table 2. Again, so far as we can tell from the record and Flat Creek’s

arguments to us, there is no indication that any of those conditions has been

satisfied.4

       Because Flat Creek has shown neither concreteness nor imminence, it has

failed to establish that it has suffered a cognizable injury in fact. Accordingly, it

lacks standing to sue.

                                             * * *




4
  Note that, just as Flat Creek’s challenge to the April 2017 compliance review could be deemed
moot—in addition to insufficiently injurious for standing purposes—its allegation that it faces
future compliance reviews at some unspecified time down the road might be thought to be
unripe—in addition to impermissibly hypothetical and conjectural for standing purposes. See,
e.g., Texas v. United States, 523 U.S. 296, 300 (1998) (holding that a claim that “rests upon
contingent future events that may not occur as anticipated, or indeed may not occur at all” is not
ripe for adjudication).

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      Flat Creek has failed to establish the requisite standing to sue under Article

III of the Constitution. We lack jurisdiction to address its claim, and therefore

AFFIRM the district court’s dismissal of Flat Creek’s complaint.




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