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Case number 16-5355.

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Owner-Operator Independent Drivers Association, Inc.

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at L. Appellants vs. United States Department of Transportation at L. Ms.

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Mayors for the Appellants, Ms.

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Lopez for the Appellees.

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Good morning.

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May it please the court.

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My name is Joyce Mayers.

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I represent the plaintiff's appellant.

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I'd like to reserve two minutes of my time for rebuttal.

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Plaintiffs challenged the district court's dismissal of plaintiff's claims for lack of standing.

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The district court misread the Supreme Court's decision in Spokio v. Robbins, and this court's decision

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in Hancock v. Urban Outfitters as having rejected standing based upon a claim for violation of statutory rights without an allegation of harm in addition to the invasion of concrete interests created by statute.

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The district court failed to consider the statutes that are involved here.

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and the intention of Congress in 49 U.S.C.

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31106 and 31150 to identify and protect plaintiffs' concrete interest in the accuracy of an individual driver's safety performance records.

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The harm that such inaccurate records pose to a driver's professional reputation for safety is the kind of harm that has traditionally provided the basis for suit in the Anglo-American system.

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An erroneous record of drunk driving or hours of service violation in the trucking industry cannot be trivialized as comparable to a wrong zip code.

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With our decision in, I mean, quite apart from the Supreme Court's case, in Hancock, we said plaintiffs must allege some concrete interest that is de facto real and actually exists.

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Now, I get your point that this information the agency has here is more serious than zip code information.

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But still, this case holds that you have to show something more than that there's inaccurate information in the government file.

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Well, I mean, that may be why your individual drivers have standing, because their information has been released, whereas the association doesn't.

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Well, the association, just to answer your last question, the association has tens of thousands of member truck drivers who are on the road daily being cited for all kinds of safety violations.

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I get that point.

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But in Hancock interpreting the Supreme Court's opinion in Skopje, we said quite clearly you have to show some de facto injury.

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And what is it here?

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The de facto injury is the harm to a professional driver's reputation for safety in the trucking industry.

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But how can it be harm if it isn't released?

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Because it is effectively released.

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First of all... What does that mean, effectively released?

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Okay.

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Let me ask you, let's get it this way for me.

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Okay.

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You have three individuals here, right?

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We have five individuals here.

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Five, excuse me.

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Yeah, thank you.

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Whose information was relieved.

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And, you know, my – I'm just speaking for myself.

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It seems to me they have standing.

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The information in the government's... This is the de facto injury that the Supreme Court and we were looking for.

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They were injured.

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But that's not true, is it?

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Or why is that true of all the drivers whose information has not been released?

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Okay.

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Just considering the MIKMAS database and the information that's contained in the MIKMAS database,

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First of all, there's a threat of an immediate threat of injury because all of those records are available to be disseminated.

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All the individual records are available to be disseminated.

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It's not just the pre-screening employment program.

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through which motor carriers can gain access to this information.

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It's FOIA, but in addition to that... Well, but you don't... Let me just talk about FOIA for a minute.

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I didn't see... Maybe I'm wrong about this, but I didn't see FOIA mentioned in your briefs until the reply brief.

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Is that true?

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Until the reply brief?

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Until your reply brief.

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The government consistently argued the availability of these records in FOIA from the earliest... No, but you didn't assert it as a potential harm until you were... We didn't specifically assert it, but what we did assert is that these records in MCMIS are available for a whole array of uses by the agency with downstream impact on these, immediate downstream impact on these drivers.

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The information in MCMIS is routinely used by the agency in all of its various rating systems, both for drivers and for motor carriers.

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on how you articulate the harm to the drivers whose information has not been released.

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I'm sorry, I didn't hear the last part of your question.

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I'm trying to get you to focus in on to articulate what is the de facto harm to the drivers whose information has not been released.

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And you say, well, it's the risk.

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that it'll be released, right?

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It's the potential, correct?

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Let me first say one thing.

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For two of the drivers, the information, in fact, was released to potential barter carriers.

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In my view, they have standing.

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I'm moving beyond those drivers to all of the other drivers who you say have standing to challenge the failure of the agency to maintain the accuracy of the information in its system, right?

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I mean, maybe they can get damages, but you're seeking injunctive and declaratory relief also.

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And you have to have standing for that, correct?

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Correct.

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OK.

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So that's what I'm focusing on.

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Either for the drivers whose information was released or for the drivers who weren't, where is the de facto injury that flows from information that hasn't been released, especially since, as I understand this,

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I don't think – am I right that for the future, this data – this incomplete data is not even available anymore through P – what do you call it – the pre-screening program?

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It's available for three years through the – electronically through the pre-employment screening program.

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But for the future, the system will be updated to show the results, correct?

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So there won't be this kind of inaccurate information anymore.

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Okay, there's two parts of that question.

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One, the information is available not just through the pre-screening employment program, it's also available through FOIA, but it's also available.

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Okay, but I just took FOIA off the table.

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It also has an impact on reputation because of all the various rating systems.

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But why?

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You mean potentially it could be, but it isn't now, correct?

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It's in there, and let's assume you're right that it's inaccurate.

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Until it's released you just you you really have not answered my question.

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I'm trying to get trying to understand why why the drivers are harmed by

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by the presence of inaccurate information given our decision in Hancock, which says you have to have something more than the information in the data system, inaccurate information.

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Just focus in on that for me.

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In Hancock, as I read Hancock, in Hancock this court

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found that the harm that was alleged was related to zip codes.

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That was the specific example in Spokeo that the court said we can't even conceive of how a wrong zip code.

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can cause any kind of harm.

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And as I read the Hancock decision, the decision there endorsed the traditional formulation of injury and fact with respect to the threat of injury as a result of a concrete interest identified by statute.

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Yeah, you just think it's a zip code case, right?

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Zip codes can't hurt anybody.

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In Hancock.

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Yeah, but the court says

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Court, it says, plaintiffs must allege some concrete interest that is de facto unreal.

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Yes, and the concrete interest here is the accuracy of a driver's safety performance record, a record that follows the driver throughout his professional career.

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But don't we learn from Spokeo that disclosure is the critical element here?

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That there's a difference between inaccurate information that has been disclosed and inaccurate information that has not been disclosed.

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There's a legally significant distinction.

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Isn't that the big learning from Spokeo?

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In Spokio, well, under the Fair Credit Reporting Act, one of the elements of injury under the Fair Credit Reporting Act is, in fact, disclosure.

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What we're saying here is that the statutes that are involved identify a concrete interest in the accuracy of information maintained in the system.

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But again, under the traditional formulation of injury in fact,

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The threat of injury is just as palpable as the actual accomplished harm.

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So disclosure makes no difference.

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In your argument, disclosure is not legally significant.

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Whether it's disclosed or not is not important.

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Not in the absolute terms that Your Honor is stating.

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We're saying that the fact that the record exists in the system, and that's a proven fact.

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That's an established fact.

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that the threat that that information may be disclosed, whether it's directly to a motor carrier, which would be the most injurious situation, or whether it is simply released for use in all these various rating systems, which can

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ultimately have an effect on a driver's employability, because... Can I ask about the two for whom it has been disclosed?

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Judge Tatel thinks they have standing.

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I'm not certain they do.

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Help me understand this.

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Have they been hurt in their employment?

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This is Mauer and Weaver?

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Is that right?

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Mauer and Weaver.

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Their information has been disclosed, but did they not get a job because of that?

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Um, it, there's not, there, there isn't information in the record at this time.

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Why?

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Why isn't there?

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Why?

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That's a very simple matter.

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That's a pleading matter, isn't it?

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Unless, I, I, I get you.

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So you, I guess your point is, no, you, you want to establish standing on a far broader, uh, basis.

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Correct.

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Because it seems to me the easy way to do this case.

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But, but Your Honor, can you, excuse me, excuse me.

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I'm sorry.

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It works better this way, I'm sorry.

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Uh, I know it's frustrating, but it, it helps me to think that, it, it seems to me a simpler way

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for you to have brought your case.

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I'm not advising you how to bring your case, but it's instructive here, is that if Mauer and Weaver had actually been fired from their jobs or had been unable to get a job because of this disclosure, boy, there you've got standing, right?

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You've got an economic interest that's hard.

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You haven't alleged that here.

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And so this is becoming more clear to me.

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And I guess that's because you don't think you need to have.

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that concrete a harm.

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You're saying just the risk that some future employer might ask for this information and find it on their record and may affect the judgment of the employer.

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That's the harm alone.

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Is that right?

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I'm just trying to understand.

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To answer your immediate question, yes, because it has an immediate effect on the driver's reputation.

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OK.

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In the particular circumstances of the drivers that are involved here.

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Tell me about these two.

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A driver would not necessarily know the reason why he was denied a job.

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The information might have been released.

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Were these two denied jobs?

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uh... well one of them applied for four jobs and it was released for the information was released for different times uh... i do not know whether whether in all four instances he was denied a job.

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I thought the statutory scheme provided for notice to the individual if the information in fact was used as part of the employment process.

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Isn't that the way it works?

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Again I think that's the Fair Credit Reporting Act but uh... in the record in this case the only

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The only requirement that a driver be advised of whether or not the released information resulted in an adverse impact would be in the consent form that is required under the pre-screening employment program.

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Right, under that form.

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It's unclear that motor carriers, in fact, follow through with that kind of thing, because it's a rolling process.

[00:14:08] Speaker 00:
Okay, so that's a different issue, but if they do follow through on that kind of thing, the joint appendix at 412, I think, has the form, and so typically an individual, if things are working as the way they should,

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the individual would know, and then that would be a concreteness that we don't know about now, because these two individuals haven't made that allegation.

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In that circumstance, it would make logical sense if that plaintiff were filing a complaint for damages related to the consent form or that kind of thing, that all of those allegations would appear in a complaint.

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Right.

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I just want to ask you a question about the way you conceive of the plaintiffs here.

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So even if you think that it's not necessary that the information had been disclosed with respect to a particular individual, I take it that your view is at least that your case is better for the two for whom the information in fact was disclosed.

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The information is more complete for sure.

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Okay.

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And then so if I'm looking at the potential groups of plaintiffs, I see three.

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You have five that you pointed to, two of whom for which the information was disclosed, three of whom we don't have any allegations about that.

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And then there's everybody else in the association.

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So am I right in understanding the case to know that there's no difference for our purposes between the three and everybody else?

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The real distinction is between the two on one hand and the three and everybody else on the other hand.

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You can look at it that way, but I would argue that all five have the same interest in going forward as professional truck drivers, that everybody has an interest in the federal regulatory authorities having an appropriate policy to ensure that the records that they maintain in their systems are accurate.

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Just to pursue Judge Srinivasan's effort to properly classify these issues,

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Yes, the distinction is between the two who alleged that information was released and everybody else, including the three who don't have those allegations.

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But there's a second distinction, isn't there?

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And that is between the relief they're seeking.

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So the two whose information was released, they're seeking damages, correctly, right?

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Under the Fair Credit Reporting Act.

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And injunctive relief.

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And you have to have standing for both of those.

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And with respect to the latter, they're in exactly the same position as the thousands of other drivers, right?

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That's correct.

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OK, great.

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All right.

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OK.

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Thank you.

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We'll hear from the government, OK?

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May it please the court, Carolyn Lopez, on behalf of the government.

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I just wanted to briefly start by talking about our first argument on mootness, which is that the bulk of plaintiff's claims here, which are for perspective relief, are moot for two reasons.

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First, they're seeking to stop the transmission of old violations that have already cycled out of PSP and are no longer available, as we've been discussing today.

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And second, because they're seeking to change a rule that simply doesn't exist anymore because it's been

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replace federal money.

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Muteness doesn't help you with the two whose information has been released, right?

[00:17:38] Speaker 05:
With respect to the two whose information has been released, it is, Muteness does still help with all of their claims for perspective relief.

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But not for damages.

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But you also argue they don't have standing, right?

[00:17:50] Speaker 05:
That's correct.

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Is there a reason why you're pushing Muteness over standing?

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Is there a reason why you started with Muteness?

[00:18:00] Speaker 05:
We think that for the bulk of plaintiffs' claims, which are all for perspective relief, it's important both that they have no individual risk that's currently occurring and that... But is there a reason why you started out... You could make the same argument about standing for them, right?

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That there's no... Your argument is there's no injury.

[00:18:21] Speaker 03:
That's right.

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So, I mean, I think... Do you think the standing argument is harder?

[00:18:26] Speaker 05:
I think that this court has only decided a few cases post Spokio and that within the boundaries of this case because of 2014, we agree that in Hancock, this court made clear that the type of claims that plaintiffs are seeking to bring here, which is just

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at heart that a pure procedural injury divorced from any concrete or real risk of harm in the real world is... Under Hancock, should we view the two whose information has been disclosed differently than the three whose information has not been disclosed?

[00:18:59] Speaker 02:
Under Hancock.

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Under Hancock, for purposes of FICRA, the folks who've had their information disseminated are to be treated differently for purposes of the claims for perspective relief.

[00:19:09] Speaker 02:
Which means that they have standing, you're saying.

[00:19:13] Speaker 05:
As we argued in our brief, we believe that they've waived those claims by not bringing them before the district court, even though Spokio had been decided.

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If you don't agree with that, though, do you think you agree they do have standing?

[00:19:24] Speaker 05:
Would you concede that those two plaintiffs have standing under the very narrow specific factual dictated this case, though we would ask that

[00:19:33] Speaker 05:
to the degree that this court does not believe those claims have been waived for Wee Man's because there are other, the government has other full defenses on FICRA.

[00:19:41] Speaker 03:
I understand, yeah.

[00:19:43] Speaker 00:
Can I just get a theoretical matter on that so you can see scanning on those, but then you make the argument with respect to prospective relief, even with respect to those two individuals,

[00:19:51] Speaker 00:
that they don't have concrete harm because they could have, if they in fact suffered the kind of concrete harm that we'd be worried about under your conception of the case, then there would have been a notice given and they could have alleged that.

[00:20:04] Speaker 00:
That's equally true for the claims for retrospective relief too.

[00:20:08] Speaker 05:
The reason for the difference in those in our perspective on standing for purposes of the FICRA damages claims and for purposes of the perspective relief under the APA had to do with the specific statutes that are at issue.

[00:20:21] Speaker 05:
And what Spokeo teaches us is that there's always a two-part test in every case.

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The first question

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is the question of whether the particular statutes at issue in the litigation.

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So the prospective relief isn't under FICRA.

[00:20:34] Speaker 05:
It's under two DOT-specific statutes, section 311.06 and section 311.50.

[00:20:40] Speaker 05:
So it's step one under Spokeo.

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The court needs to look at whether those particular statutes, in those particular statutes, Congress intended for a procedural violation to confer concrete interest.

[00:20:52] Speaker 05:
And then step two under the Spokeo test is always, even if the answer to that step one is yes,

[00:20:58] Speaker 05:
At step two, the court always needs to look at whether, on the facts of the particular record, these plaintiffs have alleged the degree of risk of harm that was recognized in that particular statute.

[00:21:09] Speaker 05:
And here, just to talk about, I'm going to take each of those in turn for the perspective relief.

[00:21:16] Speaker 05:
So under the first spokeo prong, the type of language, the plain text of the DOT-specific statutes

[00:21:28] Speaker 05:
don't contain the type of individual focusing language that, for example, the Supreme Court in Havens Realty has found.

[00:21:36] Speaker 00:
Right, so suppose I agree with you on that, just assume for purposes of argument, I'm not saying that I do, but assume that we do, then go to the retrospective part and why it is that your argument

[00:21:49] Speaker 00:
as to why there's not concreteness enough for prospectivity doesn't also apply for retrospectivity, understanding that it's under a different statute.

[00:21:58] Speaker 00:
So I get that it's under FICRA, and I get that Spokio says what it says.

[00:22:02] Speaker 00:
And then the question is then why do you come to the point that you can't make the same argument, which is to say there's an opportunity to make a more concreteness determination under FICRA.

[00:22:13] Speaker 00:
When it's through the lens of this particular regime, because under the PSP, you'd actually get notice.

[00:22:18] Speaker 05:
So under the DOT specific statutes, you need to show that there's an actual tangible adverse consequence as the result of the dissemination of the information, whereas under FICRA, the Supreme Court has said that because of the specific way the statutory damages provision works in FICRA, so in FICRA it says you can either get actual damages or damages of not less than 100 or more than $1,000,

[00:22:47] Speaker 05:
And so that type of cause of action for those types of damages, which is an unusual type of cause of action, isn't part of the APA, isn't part of the Privacy Act.

[00:22:57] Speaker 00:
So you think that what the Supreme Court said in Spokio applies across the board to FICRA claims, even if in a particular case, for this particular class of plaintiffs, they could have gotten more concrete, they could have made a more concrete claim of injury because in this case you have both FICRA and you have the PSP in operation.

[00:23:19] Speaker 00:
So in theory, they could have gotten the kind of notice of concrete injury that would have substantiated their claims for prospective relief, no less than their claims for retrospective relief.

[00:23:29] Speaker 00:
But you think that because they're raising a FICRA claim, the PSP part of it just drops out.

[00:23:33] Speaker 00:
And you're looking at it just as a FICRA claim, and then across the board under FICRA, as long as you've made out a claim under the statute, you've got standing, regardless of concreteness of injury.

[00:23:43] Speaker 05:
Under FICRA, what the Supreme Court said in Spokeo, is that particular statutory damages provision, at least where information has been actually disseminated into the real world, because that's that degree of risk prong, that those plaintiffs can make out FICRA statutory damages claims, by no means does Spokeo revolutionize the way scanning works in the ordinary run-of-the-mill statutes.

[00:24:09] Speaker 05:
And all plaintiffs' claims for prospective relief are under these types of ordinary run-of-the-mill statutes that just don't contain, that notably do not contain that type of specialized cause of action.

[00:24:25] Speaker 00:
I have one question about FOIA, unless I'd want to.

[00:24:27] Speaker 00:
No, go ahead.

[00:24:28] Speaker 00:
My question about FOIA is this.

[00:24:29] Speaker 00:
So there was no mention of FOIA in the opening brief, and so I assume that's the reason that the government, as far as I can tell, didn't respond to FOIA.

[00:24:37] Speaker 00:
So can you give us your response on FOIA?

[00:24:40] Speaker 00:
And in doing so, can you also take account of the fact that on page six of your brief,

[00:24:47] Speaker 00:
You say that the 2010 notice, which we know of that, has explained that PSP would make this data rapidly available as an alternative to requiring them to submit a FOIA request.

[00:24:57] Speaker 00:
So the possibility of FOIA is actually in the ether as your brief itself contemplates.

[00:25:04] Speaker 00:
Given that, can you just give us your response on FOIA?

[00:25:06] Speaker 05:
Absolutely.

[00:25:07] Speaker 05:
So again, we think the FOIA issue is waived, but putting that aside, we think that this new FOIA theory doesn't survive under the Supreme Court's decision in Clapper or this court's recent decision in Attias, which is that where you're talking about the risk of future injury.

[00:25:22] Speaker 05:
Nobody here has ever alleged that in fact their information was disseminated through FOIA.

[00:25:28] Speaker 05:
So this is all we're all looking at future potential injury that that injury has to be certainly impending and it can't have an attenuated chain of causation or be speculative.

[00:25:38] Speaker 05:
And here it's highly speculative that an employer rather than would choose to bypass the expeditious PSP system and go through the FOIA route instead, which takes more time, significantly more time and is subject to exemptions on a case by case basis.

[00:25:54] Speaker 05:
And so that employer would also get consent from a particular driver because

[00:25:58] Speaker 05:
to submit a FOIA request because this information involves personally identifying.

[00:26:01] Speaker 00:
So what about the drivers for whom the records through PSP aren't available any longer because you're past the three years?

[00:26:08] Speaker 00:
So as to them, all the employer has left, they don't have PSP anymore.

[00:26:11] Speaker 00:
So what the employer has left is the potentiality of using FOIA?

[00:26:15] Speaker 05:
So I just want to clarify what the employer, PSP always contains the most recent three years information about any particular driver.

[00:26:25] Speaker 05:
So an employer looking at a driver pulling up a report in PSP that says that their driver's license is clean for the last three years, why would that employer then decide to look farther?

[00:26:38] Speaker 05:
And plaintiffs have never articulated any real reason why that would happen.

[00:26:49] Speaker 03:
Did Mrs. Mayors have any timeline?

[00:26:55] Speaker 04:
I'm sorry.

[00:26:56] Speaker 03:
You can have a minute.

[00:26:57] Speaker 04:
Okay.

[00:27:00] Speaker 04:
Just on the questions related to FOIA, the government has consistently argued that PSP was only ever an alternative to FOIA and that a driver's complete record, everything that has ever, a driver's ever been cited for that is contained in MITMAS is available through FOIA.

[00:27:20] Speaker 04:
indefinitely.

[00:27:23] Speaker 04:
That has been their argument since the beginning, and it has been their consistent defense on the attack specifically against PSP in the First Circuit case of Flock versus the Department of Transportation.

[00:27:39] Speaker 04:
They made the same arguments, by the way, to the Supreme Court.

[00:27:43] Speaker 03:
Thank you.

[00:27:43] Speaker 03:
Okay, thank you.

[00:27:44] Speaker 03:
Both cases submitted.