“Once-Upon-A-Time” Injury Insufficient to Establish Article III Standing to Seek Declaratory and Injunctive Relief

The Eleventh Circuit has dismissed for lack of standing a trucking company’s suit for declaratory and injunctive relief against the Federal Motor Carrier Safety Administration (“FMCSA”). Flat Creek Trans., LLC v. Federal Motor Carrier Safety Admin., 2019 WL 2049770 (May 9, 2019).

Flat Creek Transportation claimed that FMCSA had unfairly targeted the company for compliance reviews, which reviews could result in a “Conditional” or “Unsatisfactory” safety rating. Flat Creek alleged that in 2016, its regulatory consultant “received surreptitious reports from confidential informant(s)” that FMCSA was planning an unannounced visit to Flat Creek “with the intent to falsely charge Flat Creek with multiple regulatory violations. . . .” Flat Creek also claimed that it received “flawed” safety scores, as a result of which, it claimed, it received two allegedly false notices of violation and an unfavorable compliance review report. The company further alleged that all of this was the product of “prejudice and bias” against its managing member. Flat Creek admitted, however, that none of FMCSA’s compliance reviews of the company resulted in safety ratings less than “Satisfactory,” the highest rating available.

Flat Creek’s complaint in the district court sought declaratory and injunctive relief under the Administrative Procedure Act. FMCSA moved to dismiss, arguing that the Court of Appeals had exclusive jurisdiction over the action. The district court agreed and granted the motion.

The Eleventh Circuit affirmed, but on a different ground. In an opinion written by Judge Newsom and joined by Judge Tjoflat and by Judge Gilman visiting from the Sixth Circuit, the court held that Flat Creek’s alleged injuries did not establish the requisite standing.

Flat Creek argued that it had been injured in two ways. First, its most recent safety rating, issued while the motion to dismiss was pending in the district court, originally came back “Conditional” and was only later upgraded to “Satisfactory.” Second, Flat Creek alleged that it continued to suffer the ongoing potential for agency bias in future compliance reviews.

Neither alleged injury, the court held, established the injury-in-fact required to create a justiciable case or controversy. The first alleged “injury,” the court noted, was no injury at all; the company may have experienced a conditional rating “once upon a time,” but it was undisputed that the company ultimately received a “Satisfactory” rating – the highest possible. And the second alleged injury – regarding possible future bias – was “neither ‘concrete’ nor ‘imminent,’ but rather ‘conjectural’ and ‘hypothetical.’” Under FMCSA regulations, the carrier wasn’t even eligible for a “High Risk” designation – the category likely to prompt another compliance review – until 18 months after its last on-site investigation (which had resulted in a “Satisfactory” rating). Even then, the carrier could not be deemed “High Risk” unless it had also scored above the 90th percentile, for two months in a row, in at least two ratings categories correlated with higher crash risk. “Because Flat Creek has shown neither concreteness nor imminence,” the court concluded, “it has failed to establish that it has suffered a cognizable injury in fact.”

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