OOIDA: FMCSA acts as consumer reporting agency with screening reports

An attorney representing OOIDA told the U.S. Court of Appeals for the District of Columbia that the FMCSA acts as a consumer reporting agency subject to the Fair Credit Reporting Act when it reports personal driver information to third parties.

Charles R. Stinson with The Cullen Law Firm, on behalf of OOIDA and truck drivers Klint Mowrer and Fred Weaver Jr., presented oral arguments on Wednesday, Sept. 9, saying that truckers should be able to take the FMCSA to court for damages if the agency fails to correct information contained in its Preemployment Screening Program.

“This issue facing this court on this appeal is a straightforward one,” Stinson said. “Can commercial truck drivers like Mr. Mowrer and Mr. Weaver hold the FMCSA and the other defendants accountable under the Fair Credit Reporting Act when defendants distribute inaccurate and damaging personal information about these drivers through the PSP?”

Stinson said that Congress specifically intended that FMCSA’s driver information made available to potential employers who make hiring decisions be held accountable under the FCRA.

“In operating the PSP, defendants regularly assemble consumer reports (personal driver information) to third parties to inform hiring decisions,” OOIDA wrote in its reply brief. “These reports contain allegations that the driver violated motor carrier safety laws, information that, if inaccurate, can unfairly damage drivers’ employability. Defendants’ conduct fits precisely within the FCRA’s definition of a ‘consumer reporting agency.’”

Caroline Lopez, representing the U.S. government, told the three-judge panel that the FMCSA doesn’t act as a consumer reporting agency.

“In order for plaintiffs to prevail, they would have to show both that the agency is somehow transformed into a consumer reporting agency when it’s carrying out legislative directives intended for safety purposes and that the United States has waived its sovereign immunity with respect to damages,” Lopez said. “And it can do neither.”

Lopez added that Congress’ intent to make the FMCSA a consumer reporting agency would have had to been “clear and unequivocal.”

Judge Robert L. Wilkins said the text seemed pretty clear.

“It seems to me that it says the agency is to ensure that any information released to such person will be in accordance with the Fair Credit Reporting Act,” Wilkins said. “You don’t get much more explicit than that. What does ‘will be in accordance with the Fair Credit Reporting Act’ mean?”

Lopez said that when read in context there is no clear and unequivocal waiver with respect to damages.

In his rebuttal, Stinson said OOIDA is not trying to make government entities consumer reporting agencies in all instances.

“We’re not asking that the federal government be held accountable under the FCRA for every record-keeping decision it makes” Stinson said. “What we’re asking for here is to hold FMCSA accountable when it by design is doing consumer reporting under the directive of Congress.”

OOIDA asked the appeals court to reverse the district court’s dismissal.