                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

 KLINT L. MOWRER, et al.,

                       Plaintiffs,                        Civil Action No. 12-1158 (BAH)

                       v.
                                                          Chief Judge Beryl A. Howell
 U.S. DEPARTMENT OF
 TRANSPORTATION, et al.,

                       Defendants.


                                 MEMORANDUM OPINION

       Plaintiffs, two professional truck drivers named Klint L. Mowrer and Fred Weaver, Jr.,

dispute the accuracy of information about their driving records in a database kept by the Federal

Motor Carrier Safety Administration (“FMCSA”). The First Amended Consolidated Complaint

(“FACC”), ECF No. 95, seeks damages from the defendants—the United States, the Department

of Transportation (“DOT”) and its Secretary, and the FMCSA and its Administrator—for alleged

violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681 et seq., which

regulates “consumer reporting agencies,” id. § 1681(a). Earlier in this litigation, Mowrer and

Weaver, joined by four other plaintiffs, had asserted multiple claims for damages and equitable

relief under the FCRA and the Administrative Procedure Act, see Consolidated Compl., ECF No.

35, all of which—save Mowrer’s and Weaver’s FCRA damages claim—were dismissed for lack

of Article III standing, see Owner-Operator Indep. Drivers Ass’n (OOIDA) v. Dep’t of Transp.,

879 F.3d 339, 345, 347 (D.C. Cir. 2018) (affirming in part and reversing in part OOIDA v. Dep’t

of Transp., 211 F. Supp. 3d 252 (D.D.C. 2016)). Pending now is the defendants’ motion to

dismiss the amended complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to

state a claim, because the FMCSA is not a “consumer reporting agency” as that term is defined
                                                1
in the FCRA, or under Rule 12(b)(1) for lack of subject matter jurisdiction, because the

plaintiffs’ claim is barred by sovereign immunity. Defs.’ Mot. at 1, ECF No. 97; FED. R. CIV. P.

12(b). The defendants’ motion to dismiss is granted for the reasons set forth below.

I.      BACKGROUND

        The statutory, regulatory, factual, and procedural background for this case were provided

across several of the half-dozen prior decisions in this litigation. See OOIDA, 879 F.3d at 340–

42; OOIDA, 211 F. Supp. 3d at 255–58; Weaver v. FMCSA, 744 F.3d 142, 142–44 (D.C. Cir.

2014). Background bearing on the reasons for granting defendants’ motion is repeated here.

        A.         Statutory and Regulatory Background

                   1.       The FCRA

        Aiming to ensure “fair and accurate credit reporting,” 15 U.S.C. § 1681(a)(1), the FCRA

regulates the creation and use of “consumer report[s],”1 id. § 1681a(d)(1), by “consumer

reporting agenc[ies],” id. § 1681a(f), “for certain specified purposes,” Spokeo, Inc. v. Robins,

136 S. Ct. 1540, 1545 (2016). The FCRA defines a “consumer reporting agency” as:

                   any person which, for monetary fees, dues, or on a cooperative
                   nonprofit basis, regularly engages in whole or in part in the practice
                   of assembling or evaluating consumer credit information or other
                   information on consumers for the purpose of furnishing consumer
                   reports to third parties, and which uses any means or facility of




        1
            The term “consumer report” is defined as:
                   any written, oral, or other communication of any information by a consumer
                   reporting agency bearing on a consumer's credit worthiness, credit standing, credit
                   capacity, character, general reputation, personal characteristics, or mode of living
                   which is used or expected to be used or collected in whole or in part for the
                   purpose of serving as a factor in establishing the consumer's eligibility for—
                   (A) credit or insurance to be used primarily for personal, family, or household purposes;
                   (B) employment purposes; or
                   (C) any other purpose authorized under section 1681b of this title.

15 U.S.C. § 1681a(d)(1).

                                                           2
               interstate commerce for the purpose of preparing or furnishing
               consumer reports.

15 U.S.C. § 1681a(f).

               2.       The FMCSA

       The FMCSA is the agency within the DOT responsible for ensuring “the highest degree

of safety in motor carrier transportation.” 49 U.S.C. § 113(b). By statute, the FMCSA must

operate a database, called the Motor Carrier Management Information System (“MCMIS”),

containing safety records, including information about crashes, inspections, and enforcement, of

commercial truck drivers and motor carriers. See 49 U.S.C. § 31106; see also 65 Fed. Reg.

83124, 83125 (Dec. 29, 2000) (describing data in the MCMIS). The MCMIS’s statutory purpose

is “to support safety regulatory and enforcement activities required under [Title 49].” 49 U.S.C.

§ 31106(a)(1). For example, and consistent with that purpose, the FMCSA uses information

from the MCMIS to determine which motor carriers should be prioritized for inspection. See

Silverado Stages, Inc. v. FMCSA, 809 F.3d 1268, 1271 (D.C. Cir. 2016).

       In the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for

Users (“SAFETEA-LU”), Congress mandated a new program to provide “electronic access” to

the MCMIS’s crash and inspection reports for “persons conducting preemployment screening

services for the motor carrier industry.” SAFETEA-LU, Pub L. 109-59, § 4117(a), 119 Stat.

1144, 1728–29 (2005) (codified at 49 U.S.C. § 31150). DOT’s Secretary must “ensure that any

information that is released . . . will be in accordance with the [FCRA] and all other applicable

Federal law.” 49 U.S.C. § 31150(b)(1). The FMCSA implemented SAFETEA-LU with the Pre-

Employment Screening Program (“PSP”), which gives the motor carrier industry electronic

access, for a fee, to three types of reports in the MCMIS. See id. § 31150(a) (naming those three

reports as “[c]ommercial motor vehicle accident reports,” “[i]nspection reports that contain no


                                                 3
driver-related safety violations,” and “[s]erious driver-related safety violation inspection

reports”); see also 75 Fed. Reg. 10554, 10554–55, 2010 WL 752157 (March 8, 2010)

(announcing the PSP).

        B.       Procedural Background

        These two consolidated suits challenge the accuracy of information stored in the MCMIS

about state-issued citations that the plaintiffs allege were ultimately dismissed or resolved in

their favor. FACC ¶¶ 113 (Mowrer), 134 (Weaver).2 Both plaintiffs claim that a prospective

employer accessed, through the PSP, a pre-employment screening report reflecting the allegedly

inaccurate state citations. Id. ¶¶ 113 (Mowrer), 134 (Weaver).

        The initial consolidated complaint by Mowrer, Weaver, and four other plaintiffs survived

a motion to dismiss “without prejudice, pending review of an administrative record.” Mem. Op.

and Ord. at 8 (Mar. 10, 2015), ECF No. 46. In a footnote, the decision rejected the “defendants’

contention that the FCRA does not contain a waiver of sovereign immunity” by “adopt[ing]” the

holding of Bormes v. United States, 759 F.3d 793, 795 (7th Cir. 2014), that the United States

waived its sovereign immunity by including “any . . . government or governmental subdivision

or agency,” 15 U.S.C. § 1681a(b), in the FCRA’s definition of “person,” see Mem. Op. and Ord.

at 8 n.3. The FCRA’s civil damages provisions subject “any person” who fails to comply with

the Act’s substantive provisions to compensatory damages and allow statutory damages as an

alternative to actual damages for willful violations. See 15 U.S.C. §§ 1681n, 1681o.

        After the defendants filed the administrative record and the parties briefed cross-motions

for summary judgment, all of the claims were dismissed for lack of Article III standing. OOIDA,

211 F. Supp. 3d at 261–62. In seeking summary judgment, the defendants again argued that the


        2
         The two consolidated cases are Civil Action No. 12-1158, originally filed in this Court, and Civil Action
No. 14-0548, originally filed with the D.C. Circuit.

                                                         4
FCRA did not waive sovereign immunity, but the Court declined to revisit its earlier ruling and,

“since the plaintiffs’ claims fail[ed] the standing inquiry,” also declined to address “the

applicability of the FCRA[’s]” definition of “consumer reporting agenc[ies]” to “government

agencies.” Id. at 260 n.6.

        On appeal, defendants’ brief expressly reserved, in the event of remand, the two

arguments raised in the instant motion to dismiss. See Brief of Appellees, OOIDA, 187 F.3d 339

(No. 16-5355), 2017 WL 2806868 at *49. The D.C. Circuit affirmed the dismissal of all claims

except for Mowrer and Weaver’s FCRA damages claim, remanding for further proceedings.

OOIDA, 879 F.3d at 347.

        Mowrer’s and Weaver’s First Amended Consolidated Complaint brings a single count

against the defendants for monetary damages for negligently violating the FCRA “by failing to

follow reasonable procedures to assure maximum possible accuracy” in MCMIS data, FACC

¶ 145 (citing 15 U.S.C. §§ 1681a, 1681e(b)); see also id. ¶¶ 146–48 (citing 15 U.S.C.

§ 1681i(a)(1), (4), (5)), and for willfully violating the FCRA by failing to take corrective action

after the plaintiffs disputed the data’s accuracy, id. ¶¶ 149–51 (citing 15 U.S.C. §§ 1681i(a)(1),

(4), (5), 1681c(f)).3 They seek “statutory and actual damages for violating their rights under the

FCRA,” as well as “their costs of litigation, including reasonable attorneys’ fees.” FACC at 20. 4




        3
            The plaintiffs were denied leave to file a damages claim under the Privacy Act, see 5 U.S.C. § 552a, in
part because their dropping of a damages claim under the Privacy Act from their initial consolidated complaint in
2014 amounted to a “voluntary dismissal” of that claim. Mem. Op. and Ord. at 6 (Sept. 10, 2018), ECF No. 92
(quoting Halldorson v. Sandi Grp., 934 F. Supp. 2d 147, 156 (D.D.C. 2013)).
          4
            The alleged negligent violations carry actual damages, 15 U.S.C. 1681o(a)(1), while the alleged willful
violations carry actual damages or statutory damages “of not less than $100 and not more than $1,000,” id.
§ 1681n(a)(1)(A). The plaintiffs do not allege precisely when they disputed the data, when the defendants furnished
PSP reports to prospective employers, nor any specific consequences of prospective employers’ accessing the
reports. See FACC ¶¶ 95–114 (Mowrer), 115–135 (Weaver). As a result, at this stage, the estimated damages at
stake for each plaintiff are unclear.

                                                         5
II.      LEGAL STANDARD

         To survive a motion to dismiss under Rule 12(b)(6), the “complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

Wood v. Moss, 572 U.S. 744, 757–58 (2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)). A facially plausible claim pleads facts that are not “‘merely consistent with’ a

defendant’s liability” but that “allow[] the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 556 (2007)); see also Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir.

2012). In deciding a motion under 12(b)(6), the court must consider the whole complaint,

accepting all factual allegations as true, “even if doubtful in fact.” Twombly at 555; see also,

e.g., Marshall’s Locksmith Serv. Inc. v. Google, LLC, 925 F.3d 1263, 1265 (D.C. Cir. 2019).

The same is true for deciding motions under 12(b)(1) for lack of subject-matter jurisdiction. Am.

Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011).

III.     DISCUSSION

         The plaintiffs allege that the FMCSA violated three provisions of the FCRA that apply

only to “consumer reporting agenc[ies].” See FACC ¶¶ 144–51 (citing 15 U.S.C. §§ 1681c,

1681e(b), 1681i); see also id. ¶¶ 59 (“FMSCA is a consumer reporting agency within the

meaning of the FCRA.” (citing 15 U.S.C. § 1681a(f))). Defendants’ motion to dismiss contends

that the amended complaint fails to state a claim on which relief can be granted because the

FMCSA is not a “consumer reporting agency.” See Defs.’ Mem. Supp. Mot. Dismiss (“Defs.’

Mem.”) at 9, ECF No. 97-1. The motion to dismiss is granted on that ground.5


          5
            The defendants’ argument that the FCRA damages claim is also barred by sovereign immunity is not
reached because dismissal is granted on the alternative ground. See Defs.’ Mem. at 16 (raising the two arguments
for dismissal in the alternative). Although the Court rejected the defendants’ assertion that sovereign immunity bars
the plaintiffs’ FCRA claim in connection with the motion to dismiss the first consolidated complaint, see Mem. Op.

                                                          6
        The FCRA defines a “consumer reporting agency,” in relevant part, as “any person

which, for monetary fees . . . regularly engages in whole or in part in the practice of assembling

or evaluating consumer credit information or other information on consumers for the purpose of

furnishing consumer reports to third parties.” 15 U.S.C. § 1681a(f).6 At first blush, this

definition seems to encompass the FMCSA’s actions in distributing, for a fee, pre-employment

assessments to third parties through a program, the PSP, specifically designed for that purpose.

See 49 U.S.C. § 31150.

        This first impression unravels, however, on close inspection of the definition, which

states that, to be a “consumer reporting agency,” an entity must “assembl[e] . . . consumer credit

information or other information on consumers” for the requisite “purpose.” 15 U.S.C.

§ 1681a(f) (emphasis added). The FMCSA furnishes information to third parties through PSP

but assembles information in the MCMIS. The PSP is simply a “screening tool that allows

motor carriers and individual drivers to purchase driving records from the FMCSA MCMIS

system.” 77 Fed. Reg. 42548, 42549 (July 19, 2012); see also id. (describing PSP as a “snapshot

in time” of data assembled for and stored in the MCMIS). The plaintiffs’ own complaint

acknowledges that the data at issue is compiled and maintained in the MCMIS, alleging that the

challenged state citations “went into FMCSA’s MCMIS database,” FACC ¶¶ 100, 119, that the




and Ord. at 8 n.3, the defendants have revived this challenge at each stage of this litigation, see OOIDA, 211 F.
Supp. 3d at 260 n.6; Brief of Appellees, OOIDA, 187 F.3d 339 (No. 16-5355), 2017 WL 2806868 at *49. The
government’s instant motion to dismiss relies heavily on arguments drawn from Daniel v. National Park Service,
891 F.3d 762 (9th Cir. 2018), which held that the FCRA does not contain “a clear waiver of sovereign immunity,”
id. at 776; see also Defs.’ Mem. at 9–20; Defs.’ Reply Supp. Mot. Dismiss (Defs.’ Reply) at 8–16, ECF No. 100.
Those arguments are addressed here where relevant to the adjacent question of whether the FCRA’s definition of
“consumer reporting agency” covers federal agencies like the FMCSA.
          6
            Plaintiffs’ emphasis on the FCRA’s definition, at 15 U.S.C. § 1681a(b), of “person” (which includes a
“government or governmental subdivision or agency”) is misplaced because the question here is not whether a
government agency can be a “person” but whether the definition at § 1681a(f) of a “consumer reporting agency”
covers the FMCSA in handling the data at issue here. See Pls.’ Opp’n Defs.’ Mot. Dismiss (Pls.’ Opp’n) at 9, ECF
No. 99.

                                                        7
plaintiffs filed with the FMCSA “challenge[s] to MCMIS’s continued maintenance of [that state-

citation] data,” id. ¶ 104; see also id. ¶ 122, and that “[u]nder PSP, the [DOT] provides

prospective employers access to portions of MCMIS data,” id. ¶ 49; see also id. ¶ 145 (alleging

that defendants violated the FCRA by failing to follow procedures to ensure the accuracy of data

“maintained in their MCMIS database and distributed through the PSP program”). What matters

here is the MCMIS’s purpose, not that of the PSP.7

         Congress mandated the creation of the MCMIS not for the purpose of providing

information to third parties but for the purpose of “support[ing] safety regulatory and

enforcement activities required under [Title 49].” 49 U.S.C. § 31106(a)(1); see also OOIDA,

879 F.3d at 340–41 (“To fulfill its mandate of ensuring ‘the highest degree of safety in motor

carrier transportation,’ the FMCSA . . . maintains the [MCMIS] . . . .” (quoting 49 U.S.C.

§ 113(b)). In short, the FMCSA is not a “consumer reporting agency” because the information at

issue was assembled in the MCMIS for the purpose of ensuring transportation safety and not for

the purpose of furnishing consumer reports to third parties.

         In directing the creation of the PSP, Congress did not modify the safety purpose for

which the information in the MCMIS is assembled. To the contrary, the FMCSA’s purpose in

operating the PSP is tied to motor carrier safety. The Conference Report on SAFETEA-LU

reaffirmed that “electronic access to commercial motor vehicle accident reports involving a

driver-applicant that are collected and maintained by FMCSA in its [MCMIS]” was needed “[i]n

order to improve motor carrier safety.” H.R. Rep. 109-203, at 991 (2005) (Conf. Rep.). The

FMCSA now operates the PSP in part because providing safety information stored in the



         7
           The definition of “consumer reporting agency” covers “assembling or evaluating” information for the
purpose of “furnishing consumer reports to third parties,” 15 U.S.C. § 1681a(f) (emphasis added), but the parties
offer no arguments about the term “evaluating.”

                                                         8
MCMIS to employers has “proven safety benefits for motor carriers.” See Does a motor carrier

have to use PSP for hiring drivers, FMCSA, https://www.psp.fmcsa.dot.gov/psp/FAQ.aspx.

        Plaintiffs dwell on the fact that the PSP was “created . . . for the express purpose of

providing personal driver information” to third parties for a fee. Pls.’ Opp’n at 9. Operating a

program with such a design is not sufficient, however, to transform a government entity into a

“consumer reporting agency.” If it were, then every agency keeping qualified records would be

subject to the FCRA based on the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, as

FOIA, like the PSP, statutorily requires agencies to provide records to third party requestors,

often for a fee. See Milner v. Dep’t of Navy, 562 U.S. 562, 571 (2011) (describing FOIA’s

“purpose” of “broad disclosure” (internal quotation marks omitted)); How much does it cost to

make a FOIA request, FOIA.GOV, https://www.foia.gov/faq.html.8 As the defendants argue,

such a reading of the FCRA would impose significant obligations on the federal government,

obligations that would overlap with those already imposed by the Privacy Act, which

comprehensively regulates federal agencies’ collection, maintenance, use, and dissemination of

records containing information about an individual and provides relief to individuals seeking to

correct such records. See 5 U.S.C. § 552a; Defs.’ Mem. at 19–20; Defs.’ Reply at 5. Plaintiffs

offer no evidence that Congress intended such a result.

        The plaintiffs also cannot offer a single case deeming a government agency—federal or

state—a “consumer reporting agency” subject to the FCRA. Courts have consistently concluded

that government entities are not “consumer reporting agenc[ies]” because they do not collect

information for the purpose of furnishing it to third parties. See Ollestad v. Kelley, 573 F.2d


         8
           Indeed, the information from the MICMIS found in PSP reports was previously available by FOIA
request. See 75 Fed. Reg. 10554, 10554, 2010 WL 752157 (Mar. 8, 2010) (presenting the PSP as “an alternative to
requiring [prospective employers] to submit a [FOIA] request”); Flock v. U.S. Dep’t of Transp., 136 F. Supp. 3d
138, 143 (D. Mass. 2015).

                                                       9
1109, 1111 (9th Cir. 1978) (holding that the Federal Bureau of Investigation (“FBI”) is not a

consumer reporting agency); Ricci v. Key Bancshares of Maine, Inc., 768 F.2d 456, 466 (1st Cir.

1985) (stating the same); see also Arnold v. Capital One Servs., Inc., No. 3:10-CV-244, 2011

WL 864332 at *4 (E.D. Va. Mar. 10, 2011) (same); Smith v. Busch Entm’t Corp., No.

3:08CV772-HEH, 2009 WL 1608858 at *3 (E.D. Va. June 3, 2009) (holding that Virginia’s state

criminal recordkeeping agency is not a consumer reporting agency because it compiles

information for “law enforcement purposes”); Thomas v. FTS USA, LLC, No. 13-cv-825, 2016

WL 3653883, at *5 (E.D. Va. June 30, 2016) (observing that “governmental agencies are not

consumer reporting agencies because governmental agencies do not compile information on

persons ‘for the purpose of furnishing consumer reports to third parties.’”); Parks v. Dep’t of Ed.,

No. CIV. 99-1052-KI, 2000 WL 62291 at *3 (D. Or. Jan. 26, 2000) (“The [FCRA] controls

activities of consumer reporting agencies but does not apply to records held by federal agencies.”

(citing Ollestad, 573 F.3d at 1111)); accord Fed. Trade Comm’n, Staff Opinion Letter, State

Law Enforcement Agencies, 1998 WL 34323740, at *1 (June 10, 1998) (opining that a state

agency that provided criminal history information for employee background checks for a fee was

not a consumer reporting agency).9

         Plaintiffs argue that the FCRA is special because the statute directing the creation of the

PSP requires “the Secretary . . . [to] ensure that any information that is released” through the

program “will be in accordance with the [FCRA] and all other applicable Federal law.” 49

U.S.C. § 31150(b)(1). This provision, on plaintiffs’ reading, “expressly subject[s] Defendants to


         9
           The plaintiffs misread this case law to exempt from the FCRA agencies that “collect records for
employment or other internal purposes” but to subject to the FCRA agencies that “compile and distribute . . . to third
parties personal information.” Pls.’ Opp’n at 9. Although Ollestad concerned information about an FBI employee,
see Ollestad, 573 F.3d at 1111, courts have concluded that government entities are not “consumer reporting
agenc[ies]” in cases concerning information furnished by government agencies about non-government employees to
third parties, see Ricci, 768 F.3d at 458; Smith, 2009 WL 1608858 at *1; Thomas, 2016 WL 3653883, at *3; Arnold,
2011 WL 864332 at *1.

                                                         10
the FCRA’s requirements.” Pls.’ Opp’n at 10. To the contrary, § 31150(b)(1), properly read,

merely instructs the FMCSA to ensure that information released through the PSP conforms with

the requirements of the FCRA, and with the requirements of all other relevant federal law.

       The phrase “in accordance with” generally means “in conformity with” or “in agreement

with,” not, as the plaintiffs use it, “subject to” or “under.” See, e.g., In accordance with,

OXFORD ENGLISH DICTIONARY (3d ed. 2011) (“[I]n agreement or harmony with; in conformity

to; according to.”); Accordance, THE NEW OXFORD AMERICAN DICTIONARY (2d ed. 2005) (“([I]n

phrase in accordance with) in a manner conforming with.”); Accordance, WEBSTER’S THIRD

NEW INTERNATIONAL DICTIONARY UNABRIDGED (2002) (“Agreement . . . now used chiefly in the

phrase in accordance with.”). “Under” and “in accordance with” can be synonyms, but context

confirms that they are not here. See Fla. Dep’t of Revenue v. Piccadilly Cafeterias, Inc., 554

U.S. 33, 40–41 (2008) (deeming “credible” that the word “under” could mean “in accordance

with” but rejecting that interpretation based on context). Most immediately, construing the

words “in accordance with . . . all other applicable Federal law” as reflecting congressional intent

to subject the FMCSA to obligations or even liability under innumerable, unnamed federal

statutes strains credulity, cf. FAA v. Cooper, 566 U.S. 284, 290 (2012) (describing the rule that

Congress must “unequivocally express” any intention to subject the United States to liability by

waiving sovereign immunity), yet that is how the plaintiffs would read § 31150(b)(1).

       Finally, the plaintiffs’ position that the FMCSA is subject to the FCRA based on general

provisions of that Act and on 49 U.S.C. § 31150(b)(1) cannot be squared with other provisions of

the FCRA. At 15 U.S.C. § 1681u, “Disclosures to FBI for counterintelligence purposes,”

Congress unambiguously placed on a single federal agency—the FBI—narrowly defined

obligations under the FCRA. The provision allows the FBI access to certain consumer reporting



                                                 11
information solely for use in counterintelligence investigations, id. § 1681u(a)–(c), restricts the

FBI in disclosing or disseminating that information, id. § 1681u(d), (g), and then explicitly states

that “[a]ny agency or department of the United States obtaining or disclosing any consumer

reports, records, or information contained therein in violation of this section is liable to the

consumer to whom such consumer reports, records, or information relate” for damages in a

specified amount, id. § 1681u(j). Section 1681v contains a similarly well-defined procedure for

disclosure of information “for counterterrorism purposes” to government agencies “authorized to

conduct investigations of . . . international terrorism” but does not state that those agencies are

“liable to the consumer.” Id. § 1681v. Congress’ clarity and specificity in these provisions

imposing FCRA-related obligations on federal agencies confirms that if Congress had intended

to subject the FMCSA to the FCRA, it would have said so explicitly. See, e.g., Whitman v. Am.

Trucking Ass’ns, 531 U.S. 457, 468 (2001) (“Congress . . . does not . . . hide elephants in

mouseholes.”).

IV.     CONCLUSION

        The defendants’ motion to dismiss for failure to state a claim is granted because the

FMCSA, in handling the records at issue, is not a “consumer reporting agency” under the FCRA.

The plaintiffs’ First Amended Consolidated Complaint is dismissed with prejudice.10 An Order

consistent with this Memorandum Opinion will be entered contemporaneously.

        Date: September 16, 2019



                                                             __________________________
                                                             BERYL A. HOWELL
                                                             Chief Judge

        10
           Dismissal with prejudice is warranted because “the allegation of other facts consistent with the
challenged pleading could not possibly cure the deficiency.” Rudder, 666 F.3d at 794 (internal quotation marks
omitted). In handling the data at issue, the FMCSA is not, as a matter of law, a “consumer reporting agency.”

                                                        12
