[00:00:01] Speaker 00:
Case number 12-9, excuse me.

[00:00:04] Speaker 00:
Case number 14-1298.

[00:00:05] Speaker 00:
Silverado Stages, Inc.

[00:00:08] Speaker 00:
Petitioner versus Federal Motor Carrier Safety Administration at L. Mr. Shantz for the petitioner.

[00:00:14] Speaker 00:
Mr. Sizdak for the respondent.

[00:01:45] Speaker 02:
We have the court's indulgence for just a few minutes for the electronics.

[00:02:33] Speaker 05:
Nicely done.

[00:03:34] Speaker 04:
All right, our thanks to staff in the automation division.

[00:03:40] Speaker 02:
And our thanks as well, Your Honor.

[00:03:42] Speaker 02:
My name is William Sean.

[00:03:43] Speaker 02:
I represent Silverado Stages, an employee-owned company.

[00:03:48] Speaker 02:
And I'd like to reserve one minute for rebuttal time as well.

[00:03:52] Speaker 02:
The issue in this case, Your Honors, is pretty simple, and it really is whether or not the Administrative Procedure Act and its due process protections apply to the proceedings here in which the government, the FMCSA, posted

[00:04:12] Speaker 02:
information violations on its website and added to those violations and information on violations, warning symbols, warning triangles that in effect operate as a sanction against the carrier for results of a inspection that occurred some months beforehand.

[00:04:35] Speaker 01:
And let me just make sure I understand what your argument is.

[00:04:42] Speaker 01:
You're saying that the posting of these exclamation points and this SMS data violated some form of right of due process under the Administrative Procedure Act.

[00:04:58] Speaker 01:
That's correct, Judge Walgason.

[00:05:00] Speaker 01:
And what precise statute, statutory provision are you referring to?

[00:05:06] Speaker 02:
It's the adjudication provision of the Administrative Procedure Act with an opportunity to be heard on actions taken by an agency that constitutes sanctions.

[00:05:19] Speaker 02:
I think it's 553 or 552, but I'll have to check that.

[00:05:24] Speaker 05:
I thought that's it.

[00:05:25] Speaker 05:
I don't understand.

[00:05:26] Speaker 05:
I was going to ask Judge Wilkins questions exactly right.

[00:05:32] Speaker 05:
But let me just ask you in view of that, the administrative agency here dismissed or ruled against you in the proceeding because it said that in a

[00:05:54] Speaker 05:
385.15 proceeding, you can only challenge your ultimate rating, not the findings, right?

[00:06:03] Speaker 02:
That's correct.

[00:06:03] Speaker 05:
It's a satisfactory rating.

[00:06:04] Speaker 05:
And you didn't challenge that interpretation of their own regulations, right?

[00:06:10] Speaker 05:
Well, we.

[00:06:11] Speaker 05:
You don't challenge that anywhere.

[00:06:13] Speaker 02:
We are challenging.

[00:06:16] Speaker 02:
Yes, we are.

[00:06:16] Speaker 02:
We're challenging that as a denial of due process, because there is no means by which we have an ability to challenge the violations that are alleged and posted on the website.

[00:06:29] Speaker 05:
What about the collateral proceedings going on in the, what do you call that system, data?

[00:06:35] Speaker 02:
Data queue?

[00:06:36] Speaker 05:
Data queue, yeah.

[00:06:38] Speaker 05:
What about those?

[00:06:40] Speaker 05:
Aren't you challenging those in the data queue process?

[00:06:44] Speaker 02:
We are challenging those and we are challenging them to show that they are not due process compliant because there is no opportunity, no assurance that a challenge to these violations is ever heard.

[00:06:57] Speaker 05:
Well then when you're finished with that or when it ends, you file an APA action in district court and you raise your arguments there.

[00:07:05] Speaker 05:
But your – I did not read your briefs as suggesting that you were in any way challenging – you are making some sort of vague due process argument, but I saw no challenge to the agency's interpretation of its own regulation that these proceedings, .15 proceedings, are limited to the ultimate

[00:07:25] Speaker 05:
safety rating and not the underlying findings.

[00:07:31] Speaker 05:
So it seems to me, you started out by saying it's a simple case.

[00:07:34] Speaker 05:
Yeah, you're right.

[00:07:36] Speaker 05:
It seems to me that since you're not challenging the safety rating, this proceeding is over and you can proceed in the administrative proceedings to raise all the issues you want when that's over or fail stand.

[00:07:48] Speaker 02:
Well, Judge Taylor, there actually is no administrative proceeding.

[00:07:52] Speaker 02:
That's the point.

[00:07:54] Speaker 02:
These proceedings in cyberspace, these website proceedings, go someplace we don't know where.

[00:08:03] Speaker 02:
Even as we speak today, they have never been ruled on.

[00:08:06] Speaker 02:
They have never been reconciled.

[00:08:08] Speaker 02:
Our point is that we are in time.

[00:08:10] Speaker 05:
Have you asked the agency to rule on them?

[00:08:12] Speaker 02:
Yes, we have.

[00:08:13] Speaker 02:
And we've asked repeatedly to have them ruled upon.

[00:08:16] Speaker 05:
That's what mandamus is for in the district court.

[00:08:21] Speaker 02:
We have, we were assured in this court was assured that those were proceedings that would resolve these types of issues.

[00:08:28] Speaker 02:
But even if those proceedings did resolve these types were purported to resolve this proceeding.

[00:08:33] Speaker 02:
The point is, they are not APA compliant.

[00:08:37] Speaker 02:
We don't have

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a hearing officer or anybody who can be identified who is resolving these issues.

[00:08:43] Speaker 02:
We don't have any assurance of any type of reasoned decision and response to our allegations, and ultimately we have nothing.

[00:08:54] Speaker 01:
So similar to the Weaver case, should we just, as Judge Tatel asked you, shouldn't this be brought into district court?

[00:09:06] Speaker 02:
Well, it was presented – the SMS system was presented by the government as our proceeding to resolve these issues.

[00:09:19] Speaker 02:
In other words, it was presented as the answer to the absence of any 385-15 proceeding.

[00:09:27] Speaker 02:
The point is, Your Honor, that it is not

[00:09:30] Speaker 02:
and seeking a decision out of a decision in mandamus out of the district court ultimately would not resolve the issue either because these proceedings are fundamentally flawed.

[00:09:42] Speaker 02:
They are not APA compliant.

[00:09:44] Speaker 01:
Well, I mean, you can make that argument before the district court, but rather than go round and round about that, I mean, the other problem I have here is that, you know, reviewing your petition that you made before the agency, you didn't really make this argument.

[00:10:01] Speaker 01:
The argument that you made, and this is at JA9,

[00:10:06] Speaker 01:
was that basically whether or not the Administrative Procedure Act allows the agency to post these warnings and this data, your argument was that, quote, no court precedent, including the settlement that was reached, and I'm skipping some language, sanctioned the posting of erroneous safety information.

[00:10:32] Speaker 01:
And then you go on to argue

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And the relief that you request at the end is to immediately expunge all negative commentary.

[00:10:46] Speaker 01:
So your argument wasn't that the agency didn't have authority to post this information.

[00:10:52] Speaker 01:
It was that we want negative information expunged.

[00:11:02] Speaker 01:
And the agency said this isn't the process for that to happen.

[00:11:08] Speaker 01:
You have a different process.

[00:11:12] Speaker 01:
End of petition.

[00:11:15] Speaker 01:
And as Judge Tatel pointed out, you didn't challenge that interpretation of the regulations.

[00:11:23] Speaker 01:
So I don't understand what it is that you want us to rule consistent with how you have litigated this, both before the agency and before us.

[00:11:36] Speaker 02:
Well, Your Honor, the response of the Federal Motor Carrier Safety Administration to the petition for administrative review was simply to say that these cases are, that a satisfactory rated carrier cannot challenge the violations and other information posted on the website.

[00:11:55] Speaker 02:
In that proceeding.

[00:11:57] Speaker 05:
In that proceeding.

[00:11:58] Speaker 05:
It didn't say anywhere, it said in that proceeding.

[00:12:00] Speaker 02:
Yes, but.

[00:12:01] Speaker 02:
Under that regulation.

[00:12:02] Speaker 02:
But the point is,

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A challenge under the SMS procedures, Your Honor, is not a proper challenge.

[00:12:11] Speaker 02:
It is not a viable procedure.

[00:12:14] Speaker 05:
You're not listening to what the two of us are saying.

[00:12:17] Speaker 05:
You haven't explained to us why you can't raise all of those in an administrative procedure action in the district court.

[00:12:29] Speaker 02:
Your Honor, because before the district court,

[00:12:34] Speaker 02:
These proceedings are still pending and still to require the district court to get an order of mandamus requiring that the SMS procedures result in some kind of a decision still leaves us with a decision that is fundamentally flawed.

[00:12:53] Speaker 02:
It is not BPA compliant.

[00:12:56] Speaker 05:
That's what the district court is for.

[00:12:58] Speaker 05:
That's where you raise it.

[00:12:59] Speaker 05:
Also, let me ask you this.

[00:13:00] Speaker 05:
The government says in its brief

[00:13:02] Speaker 05:
that it did bring enforcement action based on these findings against your client, right?

[00:13:09] Speaker 05:
And you settled?

[00:13:10] Speaker 05:
Is that true?

[00:13:11] Speaker 02:
We did.

[00:13:11] Speaker 02:
The government originally sought over $100,000.

[00:13:14] Speaker 02:
We settled for about $15,000.

[00:13:17] Speaker 02:
And actually, some of the violations that the government

[00:13:23] Speaker 05:
have refused to settle and raised all your issues then?

[00:13:27] Speaker 02:
No, Your Honor.

[00:13:27] Speaker 02:
We could have only raised the issues that were brought in that enforcement proceeding.

[00:13:32] Speaker 05:
Well, then how are those any different from the due process arguments you're raising here?

[00:13:36] Speaker 02:
Because the due process argument we have here is a much broader scope.

[00:13:42] Speaker 02:
The government had a narrowly tailored group of violations that it sought to prosecute us for below in the enforcement proceeding.

[00:13:54] Speaker 02:
There are many, many other violations, and of course, it didn't even address the issue of the warning symbols that have caused the carrier some substantial loss of business and problems.

[00:14:10] Speaker 02:
I had, Your Honor, we had arranged to show some of these pages from the website, the SMS website.

[00:14:19] Speaker 02:
Is that something that you would?

[00:14:20] Speaker 01:
I can't speak for my colleagues, but I've already reviewed them and submitted them beforehand.

[00:14:30] Speaker 02:
Okay.

[00:14:30] Speaker 04:
Correct.

[00:14:31] Speaker 04:
All right.

[00:14:32] Speaker 04:
So let us hear from the other side and give you some more detail.

[00:14:43] Speaker 03:
May it please the Court, Jerry Sinczak appearing on behalf of the United States.

[00:14:49] Speaker 03:
In their petition for review, as I think Your Honor's questions indicate, Silverado challenged a very particular agency action, and that was the dismissal of their 385-15 petition.

[00:14:59] Speaker 03:
That's the only agency action in the review here.

[00:15:02] Speaker 03:
And in dismissing the petition, the agency relied on its long-held interpretation of that regulation as applying or allowing it.

[00:15:10] Speaker 05:
Right.

[00:15:11] Speaker 05:
And you heard our questions.

[00:15:12] Speaker 05:
They all challenge that.

[00:15:14] Speaker 05:
And therefore, they should raise their questions in the administrative procedure, this data queue.

[00:15:20] Speaker 05:
Right?

[00:15:21] Speaker 05:
That's your position.

[00:15:23] Speaker 03:
Our position is that they should first exhaust the data cues process and then raise a challenge.

[00:15:27] Speaker 05:
So remember what he said.

[00:15:28] Speaker 05:
He said there's no deadlines, there's nothing that never gets finished, it's disappeared into a void.

[00:15:34] Speaker 05:
What does he do?

[00:15:35] Speaker 03:
First of all, Your Honor, I want to be clear that the agency has responded to several of the requests that Silverado has made and had, in fact, made a change beneficial to Silverado in response to one of those.

[00:15:45] Speaker 03:
Is that in the record?

[00:15:48] Speaker 03:
It's not in the record.

[00:15:51] Speaker 03:
It's not in the record, Your Honor, but in part because of the data queue.

[00:15:53] Speaker 05:
But what about his basic point?

[00:15:54] Speaker 05:
He says, I'm sorry.

[00:15:56] Speaker 05:
Go ahead.

[00:15:57] Speaker 05:
He says that's a completely inadequate procedure because it's all sort of often

[00:16:04] Speaker 05:
cyber world, and there's no deadlines, and it can't possibly be an adequate procedure, because you never know when it's done, if it ever does get done.

[00:16:15] Speaker 03:
Are there deadlines?

[00:16:16] Speaker 03:
There are no deadlines, Your Honor.

[00:16:17] Speaker 03:
But as Your Honor pointed out, if Silverado is unhappy with how long it's taking, they can file a mandamus action or a track suit.

[00:16:24] Speaker 04:
And so what would that mean?

[00:16:27] Speaker 04:
It would say, if the district court ruled in their favor, the district court would say, agency, you have to

[00:16:33] Speaker 04:
rule on its request within 30 days?

[00:16:38] Speaker 03:
Potentially, Your Honor.

[00:16:39] Speaker 04:
I mean, they'd have to meet the mandamus standard, but that is- So every time they want to get action from the agency, they have to go to the district court and file a mandamus action?

[00:16:48] Speaker 03:
Well, no, Your Honor, and I can assure Your Honor that the agency is working expeditiously on the remaining request.

[00:16:53] Speaker 04:
So what is- I mean, here I own this company, and this is up on the website, and I think that there's some misstatements there.

[00:17:04] Speaker 04:
So I've submitted my information to this data queue process.

[00:17:11] Speaker 04:
And it's presumably looking at them.

[00:17:15] Speaker 04:
But I have no idea if it is.

[00:17:16] Speaker 04:
I have no idea who's making the decision.

[00:17:18] Speaker 04:
If I disagree because data queue says we're not going to make any change, then what does it do?

[00:17:27] Speaker 03:
Well, once they exhaust the data queues process, of course, this is the weaver case.

[00:17:30] Speaker 04:
There is no exhaustion until data queue decides to respond.

[00:17:38] Speaker 04:
So it could be a decade.

[00:17:40] Speaker 04:
Or say it's six months.

[00:17:44] Speaker 04:
All right?

[00:17:46] Speaker 04:
And so for each time, it's another six months.

[00:17:49] Speaker 04:
I mean, there's no process here.

[00:17:51] Speaker 03:
Well, Your Honor, there is a process.

[00:17:53] Speaker 03:
And the data queue's process is an adjudicory process.

[00:17:56] Speaker 03:
The agency takes the- Where is it spelled out?

[00:17:58] Speaker 03:
It's spelled out in there is a data queue analyst manual, which we do send- It's a manual.

[00:18:04] Speaker 03:
It's not a regulation.

[00:18:05] Speaker 03:
It's not a regulation, Your Honor.

[00:18:07] Speaker 03:
Right.

[00:18:07] Speaker 04:
So we know about manuals.

[00:18:10] Speaker 04:
Yes, Your Honor, but that- I mean, it's neither binding on the agency, and it doesn't give somebody like this company any rights

[00:18:21] Speaker 04:
I just want to know.

[00:18:22] Speaker 04:
I own a company.

[00:18:23] Speaker 04:
I think there's some misinformation there.

[00:18:25] Speaker 04:
I'd like to get it corrected.

[00:18:27] Speaker 04:
So the agency says, go to data queue.

[00:18:29] Speaker 04:
So I go to data queue on January 1st.

[00:18:33] Speaker 04:
I hear nothing.

[00:18:35] Speaker 03:
Well, there is a response of, we've accepted your request.

[00:18:37] Speaker 03:
We are reviewing it.

[00:18:39] Speaker 04:
Yes, like FOIA.

[00:18:40] Speaker 04:
We received your letter.

[00:18:42] Speaker 03:
Yes, exactly.

[00:18:42] Speaker 04:
So that was January.

[00:18:45] Speaker 04:
It's now December.

[00:18:46] Speaker 04:
I still don't have a response.

[00:18:49] Speaker 04:
So what's the answer?

[00:18:50] Speaker 03:
The answer is they are more than welcome to file a mandamus action, compelling agency.

[00:18:54] Speaker 04:
So that's my point.

[00:18:55] Speaker 04:
Every time they want to get action, they have to file a district court action that says to the agency, which says to somebody.

[00:19:05] Speaker 03:
Well, Your Honor, you know, without a record.

[00:19:07] Speaker 03:
You have to answer.

[00:19:07] Speaker 04:
No, I'm just asking you.

[00:19:09] Speaker 04:
I'm an ongoing business.

[00:19:11] Speaker 04:
I'm out of business by December.

[00:19:14] Speaker 03:
Can I actually make one point here?

[00:19:16] Speaker 03:
Yes.

[00:19:16] Speaker 03:
The violations that are at issue here arose from a compliance review that took four months to complete.

[00:19:21] Speaker 03:
During that process, it was back and forth with the company.

[00:19:24] Speaker 03:
They are provided with a copy of the report.

[00:19:27] Speaker 03:
They can challenge or raise issues with the report.

[00:19:30] Speaker 04:
All I read was that the federal agency, this data queue, then refers the matter to either the federal agency that knows something about this

[00:19:43] Speaker 04:
or to the state agency if it's a state violation.

[00:19:49] Speaker 04:
And then what happens?

[00:19:51] Speaker 03:
Then the appropriate official will review.

[00:19:52] Speaker 03:
And I can give an example.

[00:19:54] Speaker 03:
For example, in this case, one of Silverado's data cues requests is they say there was an accident that occurred.

[00:20:00] Speaker 03:
And one violation was that they didn't report the accident.

[00:20:05] Speaker 03:
And you have to report an accident if there was a towing.

[00:20:07] Speaker 03:
So Silverado says, oh, we called the towing company that's listed on the report.

[00:20:12] Speaker 03:
And they don't have a record of that.

[00:20:14] Speaker 03:
So when we got that data to use request, we went out to the field, we talked to the car that was involved in the accident with Silverado's bus, and we said, did you have a towing?

[00:20:22] Speaker 03:
And they said, yes.

[00:20:24] Speaker 03:
But it was by AAA.

[00:20:25] Speaker 03:
It wasn't by this other towing company.

[00:20:27] Speaker 03:
So therefore, and then we, you know, I don't know that.

[00:20:30] Speaker 04:
You're getting into the weeds, and I'm trying to understand the process.

[00:20:33] Speaker 03:
That is, I mean, that is, we received a request.

[00:20:34] Speaker 04:
Am I out there with the towing company?

[00:20:36] Speaker 04:
Do I know who that is?

[00:20:38] Speaker 04:
Do I get a chance to depose them?

[00:20:40] Speaker 03:
You can submit any information you would like.

[00:20:42] Speaker 04:
If I know what's going on.

[00:20:44] Speaker 04:
All right.

[00:20:45] Speaker 04:
So then the state looks at it and says, no, there's a violation.

[00:20:50] Speaker 04:
So we're not making any change in the report we gave to the federal agency.

[00:20:55] Speaker 03:
And then it's a Weaver case.

[00:20:57] Speaker 03:
They file an APA action or some other action in this court if they think it falls under the Hobbs Act.

[00:21:04] Speaker 03:
In this court?

[00:21:04] Speaker 05:
I thought Weaver says it's not a Hobbs Act case.

[00:21:11] Speaker 03:
Presumably, yes.

[00:21:12] Speaker 03:
Wait, wait, wait.

[00:21:16] Speaker 03:
Well, Weaver, Your Honor, I agree with you.

[00:21:18] Speaker 03:
It's most likely Weaver would require it to be in the APA case.

[00:21:20] Speaker 05:
Weaver involved in state action.

[00:21:28] Speaker 05:
Weaver says in a petition for review case like this that the agency decision not to renew the violation didn't qualify as a final order under the Hobbs Act, didn't it?

[00:21:41] Speaker 05:
Yes, Your Honor, I agree.

[00:21:42] Speaker 05:
So what's the presumably part of it?

[00:21:44] Speaker 03:
The only reason I hesitate is that in the facts of Weaver, it was a state violation in the state.

[00:21:49] Speaker 03:
So the state was the respondent.

[00:21:51] Speaker 03:
So if it was, in this case, it's actually federal investigators.

[00:21:53] Speaker 05:
And why would that make a difference in terms of our jurisdiction?

[00:21:56] Speaker 03:
The only thing I can think of is if this court, and I don't say that this is true or that we would necessarily argue this, but this court could find that it was a federal actor, and so therefore it was a final order of the FMCSA rather than of the state.

[00:22:08] Speaker 03:
So if that played any role, and I don't think it did, but if that played any role in the Weaver decision,

[00:22:13] Speaker 03:
But I think you're right, the most likely result would be an APA action.

[00:22:16] Speaker 05:
But here there is no action at all, right?

[00:22:20] Speaker 03:
There's no action on the

[00:22:23] Speaker 03:
The only petition for review is the 385-15 petition, and that was dismissed.

[00:22:28] Speaker 03:
And as your honor pointed out, there's nothing in the brief that suggests that that action.

[00:22:33] Speaker 05:
So I'm just curious about the data queue system.

[00:22:35] Speaker 05:
Do you know the system pretty well?

[00:22:38] Speaker 05:
Do you know how it works?

[00:22:39] Speaker 03:
Resumably well, yes.

[00:22:40] Speaker 05:
So how is it working?

[00:22:41] Speaker 05:
I mean, is the system generally correcting problems to people's satisfaction?

[00:22:47] Speaker 05:
Is there a lot of litigation over it?

[00:22:50] Speaker 03:
I'm not familiar with any other litigation other than the Weaver case, and that was where it was resolved by the agency.

[00:22:56] Speaker 03:
I'm not familiar with any litigation resolving the time it takes, for example, to resolve issues.

[00:23:01] Speaker 03:
I know that the agency has received several thousand.

[00:23:06] Speaker 05:
But there are no deadlines in the system.

[00:23:07] Speaker 03:
But there are no specific deadlines.

[00:23:09] Speaker 04:
Several thousand what?

[00:23:10] Speaker 04:
Could I just be clear?

[00:23:12] Speaker 03:
Several thousand data queues request to correct information that's on the website.

[00:23:15] Speaker 04:
Several thousand?

[00:23:16] Speaker 03:
I believe so, yes.

[00:23:17] Speaker 04:
And who is data queue?

[00:23:19] Speaker 04:
is that going to one person's desk?

[00:23:21] Speaker 03:
I can't say exactly how many investigators there are.

[00:23:26] Speaker 03:
It goes to

[00:23:28] Speaker 03:
whoever was responsible.

[00:23:29] Speaker 03:
Ultimately, for example, in this case, it was the California Department of FMCSA that reviewed, that concluded the compliance review.

[00:23:37] Speaker 03:
And that's who was handling the data cues requests, in the sense that they're related to that issue.

[00:23:41] Speaker 03:
I don't know how many back office people get the initial request.

[00:23:45] Speaker 03:
But I can say, in this case, just to emphasize that the agency has actually responded to a number of them already.

[00:23:50] Speaker 03:
So although there are some that are still outstanding, the agency has responded to a number.

[00:23:55] Speaker 03:
And they were only filed in March of last year.

[00:23:56] Speaker 03:
So they've responded to a number.

[00:23:58] Speaker 03:
They will expeditiously respond to the rest.

[00:24:01] Speaker 04:
March of last year.

[00:24:03] Speaker 04:
I'm a business counsel.

[00:24:07] Speaker 05:
Has the agency, you say responded, have any of those involved rejections?

[00:24:13] Speaker 05:
I mean, refusal to change the...

[00:24:16] Speaker 03:
I believe so, Your Honor.

[00:24:17] Speaker 03:
I'd have to confirm.

[00:24:18] Speaker 03:
I don't think they've accepted every or made every change in everyone.

[00:24:21] Speaker 03:
I believe there are about a dozen that they've responded to, and I presume that I'd have to get the details on.

[00:24:26] Speaker 04:
So all this can be developed in the district court record?

[00:24:29] Speaker 03:
After the data to use process is exhausted.

[00:24:31] Speaker 04:
Well, that's what I'm getting at.

[00:24:33] Speaker 03:
Or if they file a Van Damens action.

[00:24:35] Speaker 04:
I mean, in March of last year.

[00:24:37] Speaker 01:
Could I ask a question?

[00:24:39] Speaker 01:
How do we know, or how does anybody know, when the data queue process is exhausted?

[00:24:46] Speaker 01:
What does exhaustion look like?

[00:24:47] Speaker 03:
They will receive a notification from the agency either that we've made this change in response to what you've requested or we're not making any changes.

[00:24:55] Speaker 03:
That's what happened in the Weaver case.

[00:24:57] Speaker 01:
And can they appeal that or petition to the administrator of the agency?

[00:25:03] Speaker 03:
There's no appeal within the, as far as I know, they could submit another data cues request if they have more information or something, or if they feel like something was an error, but there's no formal appellate within the agency.

[00:25:14] Speaker 01:
Let's suppose there's a warning based on some incident that happened and it was based on some sort of action by a state agency.

[00:25:32] Speaker 01:
In the data queue process, the company said, we don't know what you're talking about.

[00:25:44] Speaker 01:
That wasn't our bus.

[00:25:47] Speaker 01:
And we've actually got video footage from a police DAS cam or something that shows that it was a different bus company whose bus was involved in this incident.

[00:25:58] Speaker 01:
and somehow, you know, it was missing, identified as our bus, and we want you to fix it.

[00:26:07] Speaker 01:
Data Q would send it to the state agency, right?

[00:26:10] Speaker 01:
That's right.

[00:26:10] Speaker 01:
And let's suppose the state agency says, we don't care.

[00:26:15] Speaker 01:
We're not going to take this off of your record.

[00:26:19] Speaker 01:
And despite the fact that there's this pretty indisputable evidence, the state agency refuses to take action.

[00:26:27] Speaker 01:
What would data queue do then?

[00:26:30] Speaker 03:
Your honor, obviously that's not the facts here, because these were all violations found by a federal agency.

[00:26:36] Speaker 03:
Unfortunately, I can't answer your question.

[00:26:38] Speaker 01:
I think the answer is probably that the state's decision is final on any state violation, but I don't know if there's a... I mean, that's the way I read the process, because your brief and the materials attached here say that, you know...

[00:26:53] Speaker 01:
All we do is kind of communicate information.

[00:26:57] Speaker 01:
And so if information is provided to us, we'll pass on your complaint about the quality of that information to whoever gave it to us.

[00:27:06] Speaker 01:
But ultimately, that's between you and them.

[00:27:10] Speaker 01:
Isn't that the lesson, too, from Weaver?

[00:27:14] Speaker 03:
I mean, yes, that is how the system works.

[00:27:17] Speaker 03:
Although, I mean, I would emphasize, as a general matter, this is safety information that the agency is making available to the public.

[00:27:23] Speaker 03:
It doesn't itself have legal consequences.

[00:27:26] Speaker 03:
It might have practical consequences, but it does not have, and this court has said many times, the mere publication

[00:27:31] Speaker 03:
of safety information for public consumption is not final agency action.

[00:27:34] Speaker 03:
It's not a due process deprivation.

[00:27:36] Speaker 03:
So, but, you know, but even there'll be those arguments when we eventually reach the point where there's some challenge to.

[00:27:43] Speaker 01:
So if the agency, the federal agency knows that there's something that's false,

[00:27:49] Speaker 01:
Or knows or should know that there's some false information that they've been given by a state.

[00:27:56] Speaker 01:
If the state refuses to say, withdraw it, the agency can still publish it and there's kind of no legal ramifications there.

[00:28:06] Speaker 03:
Well, Your Honor, I mean, again, that's not hypothetical.

[00:28:08] Speaker 03:
I think we'd have to evaluate.

[00:28:09] Speaker 03:
This Court has said in cases like industrial safety equipment that a knowing falsity with an intention to penalize might qualify as a due process violation or something like that.

[00:28:19] Speaker 03:
But that would be for some other day that is not

[00:28:22] Speaker 03:
You know, the allegations here, that is not, you know, they have not exhausted the process.

[00:28:26] Speaker 03:
The only issue here is the review of the 385-15 petition and the dismissal.

[00:28:32] Speaker 03:
And on those grounds, the agency did not act arbitrarily and profusely in interpreting its regulations not to require to consider these other violations.

[00:28:42] Speaker 03:
If you're honest, no?

[00:28:43] Speaker 03:
Nothing.

[00:28:44] Speaker 03:
Further questions?

[00:28:45] Speaker 04:
No.

[00:28:45] Speaker 04:
Thank you.

[00:28:48] Speaker 04:
All right, counsel for petitioner.

[00:28:55] Speaker 02:
Judge Rogers, I think you hit the nail on the head and Judge Wilkins did too in that.

[00:29:01] Speaker 02:
Every time that we perceive or need a remedy under these procedures, do we really have to go to the district court and get a mandamus order?

[00:29:10] Speaker 02:
These regulations, 385-15, are obviously flawed.

[00:29:16] Speaker 02:
They do not provide for due process, because there is no ability to reasonably challenge this information that is posted.

[00:29:24] Speaker 02:
And Judge Wilkins, you asked?

[00:29:26] Speaker 05:
We have many cases in this circuit where district courts, using their mandamus authority,

[00:29:31] Speaker 05:
issue injunctions that deal with just that problem, so that that doesn't happen in the future.

[00:29:38] Speaker 05:
That's what mandamus is for.

[00:29:39] Speaker 02:
Well, that's right.

[00:29:40] Speaker 02:
But this entire structure is just an invitation for unlimited mandamus actions that individual periods... No, you understand my point.

[00:29:49] Speaker 05:
The district court, using its mandamus authority, can, if there are constitutional problems here, as you say, remedy them in the system.

[00:30:00] Speaker 02:
Well, Your Honor, the regulation is fundamentally flawed.

[00:30:04] Speaker 02:
There is no means of challenging this information under what purportedly is a full safety administration proceeding.

[00:30:13] Speaker 02:
And Judge Wilkins, when you noted

[00:30:15] Speaker 02:
that information erroneously or erroneous information could be posted.

[00:30:20] Speaker 02:
That's exactly what we have in the Joint Appendix.

[00:30:23] Speaker 02:
I think it's the Minnesota Trucking Association's comments.

[00:30:26] Speaker 02:
There, even after state proceedings were dismissed, the agency still refused to

[00:30:33] Speaker 02:
remove that information and to correct the record.

[00:30:37] Speaker 02:
What we have here is a – it's a cyber administration which is completely outside the proper scope of administration.

[00:30:48] Speaker 02:
We have a system where there are no checks and balances, where there is no due process, where we've had

[00:30:56] Speaker 02:
Our important proceedings in our important already ours as they're called before the data queue system in noting that we've lost over $12 million in lost contracts this year because of these flags, these warning symbols, and there is no expectation, no

[00:31:14] Speaker 02:
possibility that we know of that we're ever going to receive any kind of response.

[00:31:19] Speaker 02:
This information goes into a black hole.

[00:31:21] Speaker 02:
It is a clear denial of due process.

[00:31:23] Speaker 02:
We submit that this court has the authority to strike down these regulations and these practices because they amount to rules and regulations which have never been properly promulgated.

[00:31:35] Speaker 02:
And we should not have to have individual proceedings before district courts and seeking mandamus to

[00:31:44] Speaker 02:
And as an alternative to this court striking down the procedures under 385-15 as unlawful because they effectively create a regime without a remedy.

[00:31:59] Speaker 04:
All right.

[00:31:59] Speaker 04:
Thank you.

[00:32:00] Speaker 04:
We will take the case under advisement.