          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
           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 non-

serious violations or, in the alternative, were coercive in that
                                - 1 -
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
                                     - 2 -
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 driver-
     related 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
                                   - 3 -
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 non-

serious violations runs afoul of the Privacy Act, which contains

"a   comprehensive   and   detailed   set   of   requirements    for   the
                                 - 4 -
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
                                        - 5 -
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).


                                  - 6 -
              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
                                    - 7 -
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.
                                     - 8 -
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
                                      - 9 -
condition.").   Indeed, the disclosure of other non-serious driver-

related 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 driver-

employees 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.
                                     - 10 -
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" driver-

related 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
                                        - 11 -
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.




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