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

(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"),

(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

- 3 - 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

, 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

§ 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

- 4 - with the FMCSA. See

(c), (e);

(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

(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.,

(D.C. Cir.

2002) (quoting

(2)(A)); cf. Flock v. U.S. Dep't of

Transp.,

(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.,

(1983); see also

("[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

- 5 - Truck Lines v. United States,

(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.,

(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.,

(1st Cir. 2003))); see also

(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

(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

§ 391.23(b) (providing that "[i]f no

- 6 - 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,

(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,

, 19 (1st Cir. 1988); see

also

(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

(a), (b)(7). It argues that the

agency erred in crediting the FMCSA investigators' version of

- 7 - 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.

- 8 - Finally, Sorreda argues that the FMCSA arbitrarily found

it had violated

(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

§ 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

- 9 - 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,

, 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."

(e). Sorreda still violated § 395.8(a)(1)(i) and

this enforcement decision was within the agency's discretion. See

Heckler,

; 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

.

- 10 -