The U.S. Court of Appeals for the D.C. Circuit has ruled that the Federal Motor Carrier Safety Administration (FMCSA) is not a "consumer reporting agency" under the Fair Credit Reporting Act (FCRA) when it distributes safety records of commercial truck drivers to prospective employers.
The case is Mowrer v. USDOT, No. 19-5321 (D.C. Cir. Sep. 24, 2021), in which two commercial drivers sued the FMCSA for failing to remove certain vehicle-safety violations from the federal Motor Carrier Management Information System (MCMIS) after state courts separately dismissed the misdemeanor charges arising from the citations. The drivers alleged they were harmed by the FMCSA's inclusion of these violations in the Pre-Employment Screening Program (PSP) reports distributed to the drivers' subsequent employers. Claiming the FMCSA qualifies as a "consumer reporting agency" under the FCRA, the drivers sought damages under the Act for alleged violations by the FMCSA.
In its opinion, the court explained that to qualify as a "consumer reporting agency" regulated by the FCRA, "a person must regularly engage '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.' Id. (citing 15 U.S.C. 1681a(f)). For their part, the drivers contended FMCSA qualified by assembling accident and vehicle inspection reports in MCMIS and furnishing it to prospective employers through PSP. They argued the FMCSA violated FCRA by not using reasonable procedures to ensure the accuracy of those records, failing to investigate the accuracy of the records on their request, and failing to note to prospective employers that the drivers disputed the accuracy of the citations at issue--all requirements set forth in the FCRA.
In holding that FMCSA does not qualify as a "consumer reporting agency" under FCRA, the court explained that, even if it were to "assume that driver-safety records are 'consumer reports' within the meaning of FCRA . . . [FMCSA] neither assembles nor evaluates the records" for purposes of furnishing reports to third parties. Id. at *13. Rather, "it assembles and evaluates driver-safety records in the MCMIS . . . and does so to 'support safety regulatory and enforcement activities.'" Id. (citing the SAFE Transportation Act, 49 U.S.C. 31106(a)(1)).
Based on this conclusion, the court affirmed the lower court's dismissal of the drivers' case against FMCSA, but was careful to note that the agency's conduct could, if the facts support it, constitute a violation of the SAFE Transportation Act, which contains confidentiality and data-accuracy provisions similar to FCRA's. Id. at *15. That said, according to the court, violations of the SAFE Transportation Act do not "support the money damages sought by the drivers." Id.
The real takeaway here is that the FMCSA does not qualify as a "consumer reporting agency"--at least in the eyes of the D.C. Circuit Court of Appeals--when it assembles violation and inspection data on commercial drivers with the primary mission of enhancing highway safety. Arguably, this same argument could extend to the FMCSA's assembly of drug/alcohol testing violation information in its Drug/Alcohol Clearinghouse, which, like the PSP program, distributes violation information to employers. All this is to say that drivers who are aggrieved by the FMCSA's alleged mishandling of such data may not have any recourse (monetary or otherwise) against the agency under the FCRA. That said, the court's opinion leaves open the possibility that drivers could pursue action against the agency under other federal statutes through the Administrative Procedure Act.
If you have any questions, feel free to reach out to Jerad Childress or Brandon Wiseman.