Sorreda Transport, LLC v. US Dept of Transportation ( 2020 )

United States Court of Appeals
For the First Circuit
No. 20-1125
SORREDA TRANSPORT, LLC,
Petitioner,
v.
UNITED STATES DEPARTMENT OF TRANSPORTATION; UNITED STATES,
Respondents.
PETITION FOR REVIEW OF AN ORDER OF THE
FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION
Before*
Lynch, Circuit Judge,
and Saris,** District Judge.
Keith A. Mathews and Associated Attorneys of New England on
brief for petitioner.
Joy K. Park, Senior Trial Attorney, Department of
Transportation, Heather Eilers-Bowser, Chief Counsel, Charles J.
Fromm, Deputy Chief Counsel, Sue Lawless, Assistant Chief Counsel
for Litigation, Cynthia Campise, Trial Attorney, Federal Motor
Carrier Safety Administration, Steven G. Bradbury, General
Counsel, Paul M. Geier, Assistant General Counsel for Litigation
and Enforcement, and Peter J. Plocki, Deputy Assistant General
Counsel for Litigation and Enforcement, on brief for respondents.
* While this case was submitted to a panel that included
Judge Torruella, he did not participate in the issuance of the
panel's opinion. The remaining two panelists therefore issued the
opinion pursuant to 28 U.S.C. § 46(d).
** Of the District of Massachusetts, sitting by designation.
November 9, 2020
LYNCH, Circuit Judge. Sorreda Transport, LLC
("Sorreda") challenges a final decision of the Federal Motor
Carrier Safety Administration ("the FMCSA"), an agency within the
United States Department of Transportation that regulates the
trucking industry in the United States. The FMCSA determined that
Sorreda's business safety rating is "unsatisfactory." Sorreda
argues that the FMCSA's investigation and resulting decision was
arbitrary and capricious under the Administrative Procedure Act
("the APA"), 5 U.S.C. § 706(2)(A), and so the agency's decision
should be set aside. The FMCSA's findings are supported by
substantial evidence and its determination that Sorreda's business
safety rating was unsatisfactory was neither arbitrary nor
capricious under the applicable regulations. We deny the petition
for review.
I.
Sorreda is a small, interstate trucking company owned by
Evangeline Sebor and located in Bedford, New Hampshire. In May
2019, the FMCSA initiated a compliance review of Sorreda after
receiving two complaints through its consumer complaint database.
The FMCSA completed its investigation in August 2019, which
included a two-day investigation at Sorreda's place of business
and additional requests and subpoenas for records. In September
2019, the FMCSA issued a notice informing Sorreda of its proposed
unsatisfactory rating, which resulted from an acute violation in
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one safety factor (General) and critical violations in two other
safety factors (Driver and Operational).
Specifically, the FMCSA investigators found that (1)
Sorreda had falsified a road test for one of its drivers (General),
see 49 C.F.R. §§ 390.35, 391.51(a), (2) it had not obtained several
drivers' motor vehicle records within the timeframe required by
regulation and had failed to maintain medical examiner's
certificates in several of its drivers' qualification files as
required by regulation (Driver), see id. § 391.51(a), (b)(2),
(b)(7), and (3) it had failed to maintain and to retain accurate
and true time records for several of its drivers and had failed to
install an electronic logging device to record those entries as
required by regulation (Operational). See id. §§ 395.1(e),
395.8(a). The critical violations as to the second and third
safety factors resulted in unsatisfactory safety ratings for those
two factors, and unsatisfactory safety ratings in two factors
automatically results in an overall unsatisfactory safety rating.
Id. § 385 app. B.III.A(b). A motor carrier with a final safety
rating of unsatisfactory is prohibited from operating a commercial
motor vehicle in interstate or intrastate commerce unless it takes
corrective action to improve its overall safety rating to
conditional or satisfactory or it successfully appeals its
proposed unsatisfactory rating through an administrative review
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with the FMCSA. See 49 U.S.C. § 31144(c), (e); 49 C.F.R.
§§ 385.13(a), 385.15, 385.17.
Sorreda chose not to take immediate corrective action
and instead appealed the proposed unsatisfactory rating to the
FMCSA. In November 2019, the FMCSA issued a final order denying
Sorreda's petition for administrative review and concluding that
Sorreda had failed to prove by a preponderance of the evidence
that the FMCSA had erred in assigning it an unsatisfactory rating.
Sorreda filed a timely petition for review in this Court
pursuant to 28 U.S.C. §§ 2342(3)(A), 2343-44.
II.
A "court must uphold a decision of the FMCSA unless it
is 'arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.'" Darrell Andrews Trucking, Inc. v.
Fed. Motor Carrier Safety Admin., 296 F.3d 1120, 1124 (D.C. Cir.
2002) (quoting 5 U.S.C. § 706(2)(A)); cf. Flock v. U.S. Dep't of
Transp., 840 F.3d 49, 54-55 (1st Cir. 2016). "The scope of review
under the 'arbitrary and capricious' standard is narrow and a court
is not to substitute its judgment for that of the agency." Motor
Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983); see also id. ("[T]he agency must
examine the relevant data and articulate a satisfactory
explanation for its action including a 'rational connection
between the facts found and the choice made.'" (quoting Burlington
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Truck Lines v. United States, 371 U.S. 156, 168 (1962))). We
accept an agency's findings so long as they are supported by
substantial evidence in the record as a whole. See Vieques Air
Link, Inc. v. U.S. Dep't of Lab., 437 F.3d 102, 104 (1st Cir. 2006)
("[W]e 'accept the findings and inferences drawn by the ALJ,
whatever they may be, unless they are irrational,' and respect his
or her 'prerogative in the first instance to . . . make credibility
assessments . . . ." (all but first alteration in original)
(quoting Bath Iron Works Corp. v. U.S. Dep't of Lab., 336 F.3d 51,
56 (1st Cir. 2003))); see also 5 U.S.C. § 706(2)(E).
Sorreda first argues that the FMCSA inappropriately
found that Sorreda had failed to obtain and to maintain motor
vehicle records in several of its drivers' qualification files.
Sorreda concedes, however, that it did not obtain the required
motor vehicle records and place them in the driver qualification
files for at least two of its drivers within the thirty-day period
required by regulation. See 49 C.F.R. §§ 391.23(a)-(b),
391.51(a), (b)(2).
Furthermore, the agency was correct that the plain
language of the "good faith" exception to the motor vehicle record
requirement does not apply to Sorreda's situation because the motor
vehicle records for the two drivers at issue did in fact exist and
were eventually received by Sorreda, just not within the timeframe
set by regulation. See id. § 391.23(b) (providing that "[i]f no
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motor vehicle record is received from the State or States required
to submit this response, the motor carrier must document a good
faith effort to obtain such information, and certify that no record
exists for that driver in that State or States" (emphasis added)).
It does not matter that the agency chose to charge Sorreda with a
critical violation (§ 391.51(b)(2)) rather than a lesser available
non-critical violation (§ 391.23(b)). Placing the motor vehicle
record in and maintaining the motor vehicle record in the driver's
qualification file are separate regulatory requirements, and we
typically do not question the agency's enforcement discretion.
See Heckler v. Chaney, 470 U.S. 821, 831 (1985) ("[A]n agency's
decision not to prosecute or enforce, whether through civil or
criminal process, is a decision generally committed to an agency's
absolute discretion."); Mass. Pub. Interest Rsch. Grp., Inc. v.
U.S. Nuclear Regul. Comm'n, 852 F.2d 9, 19 (1st Cir. 1988); see
also 5 U.S.C. § 701(a)(2) (providing that "agency action . . .
committed to agency discretion by law" is unreviewable under the
APA).
Sorreda next argues that the FMCSA acted arbitrarily in
finding that Sorreda had failed to maintain the required medical
examiner's certificates in several of its drivers' qualification
files. See 49 C.F.R. § 391.51(a), (b)(7). It argues that the
agency erred in crediting the FMCSA investigators' version of
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events rather than Sorreda's.1 We respect the agency's credibility
determination and conclude that it is supported by substantial
evidence in the record. Both investigators attested that medical
examiner's certificates were missing from several of the drivers'
physical qualification files that Sebor had provided. They also
attested that, while Sebor had shown the investigators an
unauthenticated photograph of one of the driver's medical
examiner's certificates on her cell phone, she at no time during
the compliance review mentioned she maintained that driver
qualification information electronically. They further attested
that they requested copies of the medical examiner's certificates
from Sebor and she never provided them. The failure to provide
evidence at the time of the compliance review that Sorreda
maintained medical examiner's certificates in the drivers'
qualification files was sufficient to find that it had violated
§ 391.51(b)(7).2
1 The investigators state that they had requested the
missing medical examiner's certificates but never received them,
while Sorreda asserts that Sebor had offered to provide copies of
the missing medical examiner's certificates to the investigators
but they refused the offer.
2 It is irrelevant that Sorreda submitted the medical
examiner's certificates as part of its administrative appeal of
the FMCSA's decision because that does not prove they were
maintained in the drivers' qualification files at the time of the
compliance review.
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Finally, Sorreda argues that the FMCSA arbitrarily found
it had violated 49 C.F.R. § 395.8(a)(1)(i) by failing to install
or requiring drivers to record their duty status on an electronic
logging device. Sorreda argues that it was exempt from this
requirement under the "short-haul exemption." See id. § 395.1(e).
To qualify for this exemption from § 395.8, the motor carrier must
satisfy several requirements, including "maintain[ing] and
retain[ing] for a period of 6 months accurate and true time records
showing" the drivers' hours of duty. Id. § 395.1(e)(2)(v). During
the compliance review, FMCSA investigators examined a sample of
sixty driver time records and found that all sixty time records
were not true and accurate. These records pertained to three
drivers. On appeal the FMCSA considered only the twenty-four
violations related to one driver, Matthew White, whom Sorreda fired
for violation of various policies after only three months of
employment. Because these twenty-four violations constituted at
least ten percent of the sixty documents reviewed, the FMCSA found
they were sufficient to establish a "pattern of noncompliance"
with § 395.8(a)(1)(i), resulting in an "unsatisfactory" rating.
See id. § 385 app. B.II(g)–(h), B.II.C(b) (defining "pattern of
noncompliance with a critical regulation"). The FMCSA did not
address the accuracy of the other two drivers' records.
Sorreda concedes that one of its drivers submitted
inaccurate records of his duty status numerous times, which was
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sufficient to find that Sorreda did not qualify for the short-haul
exemption and so was required to have its drivers record their
duty status on an electronic logging device. Sorreda cannot avoid
its obligation to comply with the FMCSA's safety regulations by
shifting the blame to its employee for its noncompliance. See In
re Berg Grain & Produce, Inc., Docket No. FMCSA-2010-0278, 2015 WL
6848568, at *3-4 (Nov. 5, 2015). Nor does it matter that the FMCSA
could have charged Sorreda with a different regulatory violation
for "mak[ing] a false report in connection with a duty status."
49 C.F.R. § 395.8(e). Sorreda still violated § 395.8(a)(1)(i) and
this enforcement decision was within the agency's discretion. See
Heckler, 470 U.S. at 831; Mass. Pub. Interest Research Grp., Inc.,
852 F.2d at 19.
The FMCSA's findings and conclusions are supported by
substantial evidence in the record and its decision denying
Sorreda's petition for review is not arbitrary or capricious.3
Petition for review denied.
3 This does not mean that Sorreda's business is shut down
permanently. It can still rectify the identified deficiencies in
its safety standards and request a change in its safety rating at
any time pursuant to 49 C.F.R. § 385.17.
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