John Gohagan; Jessica Gohagan, Plaintiffs – Appellants v. The Cincinnati Insurance Company, Defendant – Appellee

 

No. 14-3454

 

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

 

2016 U.S. App. LEXIS 53

 

September 24, 2015, Submitted

January 6, 2016, Filed

 

 

For The Cincinnati Insurance Company, Defendant – Appellee: David Patrick Bub, Kenneth Raymond Goleaner, Brown & James, Saint Louis, MO.

 

JUDGES: Before RILEY, Chief Judge, GRUENDER and KELLY, Circuit Judges.

 

OPINION BY: GRUENDER

 

OPINION

GRUENDER, Circuit Judge.

John and Jessica Gohagan appeal the district court’s1 grant of summary judgment to The Cincinnati Insurance Company (“Cincinnati”). The district court held that, even if both the Business Owners Package (“BOP”) and Commercial General Liability (“CGL”) policies issued by Cincinnati covered Mr. Gohagan’s injury, the terms of those policies prohibited a single injury from giving rise to more than the $1,000,000 in coverage benefits the Gohagans had already received under the CGL policy. On appeal, the Gohagans argue that they are entitled to coverage under both the BOP and CGL policies and that the policies’ anti-stacking2 provisions are ambiguous and therefore must be construed to allow coverage up to the $1,000,000 each-occurrence [*2]  limit of both policies, for a total of $2,000,000 of coverage. For the reasons set forth below, we affirm.

 

1   The Honorable Sarah W. Hays, Chief Magistrate Judge for the Western District of Missouri, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c).

2   [HN1] “‘Stacking’ refers to an insured’s ability to obtain multiple insurance coverage benefits for an injury either from more than one policy . . . or from multiple coverages provided for within a single policy.” Daughhetee v. State Farm Mut. Auto. Ins. Co., 743 F.3d 1128, 1131 (8th Cir. 2014) (quoting Niswonger v. Farm Bureau Town & Country Ins. Co. of Mo., 992 S.W.2d 308, 313 (Mo. App. 1999)).

 

In January 2012, Thomas Campbell attempted to remove a tree from a property being developed for a residential subdivision. The tree fell on John Gohagan, who suffered serious injuries as a result. Mr. Gohagan asserted claims against Campbell for the injuries, and Mrs. Gohagan sought compensation from Campbell for loss of consortium. The Gohagans reached a settlement with Campbell, which included Cincinnati’s payment of the $1,000,000 per-occurrence limit under the Cincinnati-issued CGL policy held by Campbell and his wife. However, the Gohagans reserved the right to litigate whether Campbell’s BOP policy, which also had a $1,000,000 each-occurrence limit, provided additional coverage. [*3]

Although the parties stipulated to the fact that the BOP policy was in effect when Mr. Gohagan was injured, Cincinnati contended that the BOP policy’s bodily injury liability coverage did not apply to Mr. Gohagan because the injury did not arise out of Campbell’s ownership, maintenance, or use of certain business premises in Waynesville, Missouri, as the BOP policy required. Cincinnati also argued that, even if the BOP policy were applicable, the BOP and CGL policies’ anti-stacking provisions limited coverage to the $1,000,000 already paid by Cincinnati under the CGL policy.

The Gohagans and Cincinnati submitted a joint complaint for declaratory judgment to the district court. The stipulation of facts narrowed the issues for determination to the following: (1) whether coverage under the BOP policy was limited to bodily injury arising out of the ownership, maintenance, or use of the specified Waynesville premises and (2) whether the BOP and CGL policies’ antistacking provisions prohibited coverage stacking, thereby limiting the combined total of the applicable each-occurrence limit of liability to $1,000,000. After filing the joint stipulation of facts, both parties moved for summary [*4]  judgment, and the district court granted Cincinnati’s motion. The district court determined that fact issues as to the effective date of the BOP policy’s geographic-limitation provision prevented summary judgment on the first issue. The court instead based its summary-judgment grant on the second issue, finding that the language of the BOP and CGL policies prohibited the stacking of coverage when both policies covered the same injury. The policies thus limited the maximum coverage for any one occurrence to the each-occurrence limit of $1,000,000. The Gohagans appeal the district court’s findings on both issues.

 

[HN2] We review both the district court’s grant of summary judgment and its interpretation of the insurance policies de novo. Northland Cas. Co. v. Meeks, 540 F.3d 869, 872 (8th Cir. 2008). Summary judgment is appropriate only when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Raines v. Safeco Ins. Co. of Am., 637 F.3d 872, 874 (8th Cir. 2011). “Interpretation of an insurance policy is a matter of state law.” Progressive N. Ins. Co. v. McDonough, 608 F.3d 388, 390 (8th Cir. 2010) (quoting Stan Koch & Sons Trucking, Inc. v. Great W. Cas. Co., 517 F.3d 1032, 1039 (8th Cir. 2008)). Here, Missouri law applies, as Missouri is the forum state, and neither party has raised a choice-of-law claim. See id.

Because the Gohagans have already [*5]  received $1,000,000 from Cincinnati under the CGL policy, their appeal fails if the BOP and CGL policies’ anti-stacking provisions limit the combined total of coverage for Mr. Gohagan’s injury to $1,000,000. [HN3] “The interpretation of an insurance policy is a question of law,” McCormack Baron Mgmt. Servs., Inc. v. Am. Guarantee & Liab. Ins. Co., 989 S.W.2d 168, 171 (Mo. 1999), to which Missouri courts apply general contract-interpretation principles, Todd v. Mo. United Sch. Ins. Council, 223 S.W.3d 156, 160 (Mo. 2007). In disputes over the meaning of contract language, “[t]he key is whether the contract language is ambiguous or unambiguous.” Id. (quoting Peters v. Emp’rs Mut. Cas. Co., 853 S.W.2d 300, 302 (Mo. 1993)). The exercise of interpreting an insurance policy requires that we “ascertain the intention of the parties and . . . give effect to that intention.” Secura Ins. v. Horizon Plumbing, Inc., 670 F.3d 857, 861 (8th Cir. 2012) (quoting J.E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261, 264 (Mo. banc 1973)). The intention of the parties “is presumptively expressed by the ‘plain and ordinary meaning’ of the policy’s provisions,” id. (quoting Mo. Emp’rs Mut. Ins. Co. v. Nichols, 149 S.W.3d 617, 625 (Mo. Ct. App. 2004)), “which [we] read ‘in the context of the policy as a whole,'” id. (quoting Am. States Ins. Co. v. Mathis, 974 S.W.2d 647, 649 (Mo. Ct. App. 1998)). “In construing contractual provisions, this court is to avoid an interpretation that renders other provisions meaningless.” Nodaway Valley Bank v. E.L. Crawford Constr., Inc., 126 S.W.3d 820, 827 (Mo. Ct. App. 2004).

In this appeal, the Gohagans raise two arguments in an attempt to establish that the BOP and CGL policies are ambiguous as to the extent of coverage. Such ambiguity, the Gohagans argue, would compel the court to construe [*6]  the disputed policy language against Cincinnati, the insurer. See Rice v. Shelter Mut. Ins. Co., 301 S.W.3d 43, 47 (Mo. 2009) ([HN4] “Ambiguous policy language must be construed against the insurer.”).

The Gohagans first argue that the anti-stacking provisions of the BOP and CGL policies are ambiguous, particularly with respect to the meaning of “aggregate maximum limit of insurance.” The BOP policy’s anti-stacking provision, labeled “Two or More Policies Issued by Us,” provides:

 

If this policy and any other policy issued to you by us or any company affiliated with us apply to the same “occurrence” or “personal and advertising injury” offense, the aggregate maximum limit of insurance under all the policies shall not exceed the highest applicable limit of insurance under any one policy.

 

 

(emphasis added). In turn, the anti-stacking provision of the CGL policy, also labeled “Two or More Coverage Forms or Policies Issued by Us,” provides:

If this Coverage Part and any other Coverage Form, Coverage Part or policy issued to you by us or any company affiliated with us apply to the same “occurrence” or “personal and advertising injury” offense, the aggregate maximum limit of insurance under all the Coverage Forms, Coverage Parts or policies shall not exceed [*7]  the highest applicable limit of insurance under any one Coverage Form, Coverage Part or policy.

 

 

(emphasis added). The declarations pages of both the BOP and CGL policies refer to an “Each Occurrence Limit” of $1,000,000 and a “General Aggregate Limit” of $2,000,000. However, neither policy provides a definition for “aggregate maximum limit of insurance.”

The Gohagans argue that, without a definition expressed in the policy, an ordinary purchaser would understand “aggregate maximum limit of insurance” to refer to the $2,000,000 general aggregate limit. Under such a reading, each of the two policies would afford separately $1,000,000 of coverage for Mr. Gohagan’s injury pursuant to the each-occurrence limit, for a total of $2,000,000 of coverage. Cincinnati counters that the “aggregate maximum limit of insurance” is “the sum of all available coverage . . . , the highest applicable limit of insurance” under any one Cincinnati-issued policy. Thus, Cincinnati argues, “the highest applicable limit of insurance is the $1,000,000 that Cincinnati has already paid under the CGL policy.” While conceding that Cincinnati’s interpretation is “reasonable,” the Gohagans assert that the existence of [*8]  two reasonable interpretations evidences a lack of clarity that obligates us to resolve the ambiguity against Cincinnati.

We see no ambiguity here. [HN5] “An ambiguity exists when there is duplicity, indistinctness, or uncertainty in the meaning of the language in the policy. Language is ambiguous if it is reasonably open to different constructions.” United Fire & Cas. Co. v. Titan Contractors Serv., Inc., 751 F.3d 880, 883-84 (8th Cir. 2014) (quoting Jones v. Mid-Century Ins. Co., 287 S.W.3d 687, 690 (Mo. 2009)). “A contract or provision . . . is not ambiguous merely because the parties disagree over its meaning.” Atlas Reserve Temps., Inc. v. Vanliner Ins. Co., 51 S.W.3d 83, 87 (Mo. Ct. App. 2001).

Here, the anti-stacking provisions viewed in their entirety are unambiguous. By focusing solely on “aggregate maximum limit of insurance,” the Gohagans ignore the stipulation that the aggregate maximum limit “shall not exceed the highest applicable limit of insurance under any one policy.” In this case, the tree-falling incident that resulted in Mr. Gohagan’s injury represents the “occurrence” from which our interpretation of the policies flows. Both policies have an each-occurrence limit of $1,000,000. For the occurrence at issue, then, the “highest applicable limit of insurance” under either individual policy is equivalent to the each-occurrence limit. Thus, the aggregate maximum limit of insurance under both policies combined [*9]  may not exceed the each-occurrence limit under either policy–in this case, $1,000,000. See Smith v. Wausau Underwriters Ins. Co., 977 S.W.2d 291, 294 (Mo. Ct. App. 1998) (applying an anti-stacking clause nearly identical to those at issue here to limit the “aggregate maximum limit of liability” under two policies issued by the insurance company or affiliate to an amount “not exceed[ing] the highest applicable limit of liability” under either policy). Reading the anti-stacking provisions as a whole, see Secura Ins., 670 F.3d at 861, the Gohagans therefore received the full amount of coverage owed to them under the BOP and CGL policies when Cincinnati paid them $1,000,000 pursuant to the CGL policy.

The Gohagans next contend that, even if the anti-stacking provisions are not ambiguous, the BOP and CGL policies still are ambiguous because the “Other Insurance” provision in each policy establishes coverage that the anti-stacking provision rescinds. These “Other Insurance” provisions read as follows:

 

This insurance is primary except [in circumstances not relevant here]. If this insurance is primary, our obligations are not affected unless any of the other insurance is also primary. Then, we will share with all that other insurance by the method described in c. below.

 

 

Section c., in turn, sets forth the following [*10]  “Method of Sharing”:

If all of the other insurance permits contribution by equal shares, we will follow this method also. Under this approach each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first.

 

 

(emphasis added). These “Other Insurance” clauses, the Gohagans argue, affirmatively provide primary coverage under each policy, such that each policy provides for payment in shares equal to those paid under any other policy. In other words, the Gohagans submit that the BOP and CGL policies individually provide “primary coverage” that the anti-stacking provisions impermissibly limit. See Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 134 (Mo. 2007) (“Where, as here, an other insurance clause appears to provide coverage but other clauses indicate that such coverage is not provided, then the policy is ambiguous, and the ambiguity will be resolved in favor of coverage for the insured.”).

The Gohagans’ interpretation, however, again mistakenly relies on reading an individual provision in isolation from the rest of the policy, an approach that would leave the anti-stacking provisions meaningless. The district court correctly determined that the “Other Insurance” provisions [*11]  apply when policies covering the same injury are issued by Cincinnati and another insurance company, not when two policies are issued by Cincinnati. Instead, the “Two or More Policies Issued by Us” provisions apply when policies covering the same injury are issued by Cincinnati alone. The Gohagans’ interpretation, the district court continued, would render the “Two or More Policies Issued by Us” provisions meaningless, an outcome courts seek to avoid when interpreting contracts. Nodaway, 126 S.W.3d at 827. We agree. The Gohagans’ attempts to create ambiguity where none exists have failed.

 

III.

For the reasons set forth above, the district court did not err in finding that the BOP and CGL policies prohibit stacking where both policies cover the same injury, such that the maximum coverage for Mr. Gohagan’s injury is $1,000,000.3 We thus affirm the district court’s grant of summary judgment to Cincinnati.

 

3   As our conclusion prevents the Gohagans from receiving more than the $1,000,000 in coverage Cincinnati has already paid them under the CGL policy, we need not reach the issue of whether coverage under the BOP policy was limited to bodily injury arising out of Campbell’s ownership, maintenance, or use of the Waynesville [*12]  premises designated in the policy.

SILVERADO STAGES, INC., PETITIONER v. FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION AND UNITED STATES OF AMERICA, RESPONDENTS

 

No. 14-1298

 

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

 

2016 U.S. App. LEXIS 629

 

December 9, 2015, Argued

January 15, 2016, Decided

 

 

PRIOR HISTORY:     [*1] On Petition for Review of an Order of the Federal Motor Carrier Safety Administration.

 

COUNSEL: William H. Shawn argued the cause and filed the briefs for petitioner.

 

Gerard Sinzdak, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Matthew M. Collette, Attorney.

 

JUDGES: Before: ROGERS, TATEL and WILKINS, Circuit Judges. Opinion for the Court filed by Circuit Judge WILKINS.

 

OPINION BY: WILKINS

 

OPINION

WILKINS, Circuit Judge: Petitioner Silverado Stages, Inc., a California charter bus service, petitions this Court for review of a Federal Motor Carrier Safety Administration (“FMCSA”) determination denying Silverado’s petition for administrative review after the FMCSA publicly reported that Silverado violated a number of federal and state safety regulations. Because some of Silverado’s claims should have been brought before the District Court, and we find those properly before us meritless, we deny Silverado’s petition.

 

 

Congress requires the Department of Transportation (“DOT”) to “determine whether an owner or operator is fit to operate safely commercial motor vehicles,” based upon, among other things, “the [*2]  safety inspection record of such owner or operator.” 49 U.S.C. § 31144(a)(1). DOT is also required to “make such final safety fitness determinations readily available to the public.” Id. § 31144(a)(3). DOT has delegated these responsibilities to the FMCSA. See 49 C.F.R. § 1.86 (listing the overall responsibilities of the FMCSA).

The standards and procedures the FMCSA uses to determine the safety of motor carriers such as Silverado is provided in 49 C.F.R. § 385 et seq. See id. § 385.1(a) (“This part establishes the FMCSA’s procedures to determine the safety fitness of motor carriers, to assign safety ratings, to direct motor carriers to take remedial action when required, and to prohibit motor carriers receiving a safety rating of ‘unsatisfactory’ from operating a [commercial motor vehicle].”). These procedures require the FMCSA to assign each carrier a safety rating based on an on-site examination of that carrier’s operations. See id. § 385.9 (describing the procedure for assigning a safety rating). The result of that examination is twofold. First, the FMCSA issues violations to carriers found to be out of compliance with pertinent safety regulations. See id. pt. 385, App. A (explaining the safety audit evaluation process). The FMCSA may seek civil penalties for such violations. [*3]  See 49 U.S.C. § 521(b); 49 C.F.R. § 386.11(c). Second, based on these violations, as well as other factors such as the carrier’s accident history, see 49 C.F.R. § 385.7, the FMCSA assigns carriers one of three ratings: “satisfactory,” “conditional,” or “unsatisfactory,” id. § 385.3. An “unsatisfactory” rating precludes a carrier from operating a commercial motor vehicle in interstate commerce. 49 U.S.C. § 31144(c); 49 C.F.R. § 385.13.

A carrier may petition the FMCSA to review its safety rating pursuant to 49 C.F.R. § 385.15. The agency will adjust the carrier’s rating if it finds that it made “an error in assigning [the carrier’s] proposed or final safety rating.” Id. § 385.15(a). Because the FMCSA uses the § 385.15 review process to review only a carrier’s safety rating, the FMCSA typically will not review the validity of carrier safety violations as a part of that process. See FMCSA Order Dismissing Pet. For Admin. Review of Safety Rating (“FMCSA Order”), J.A. 13 (“In a petition filed under 49 CFR 385.15, the only relief afforded for any alleged errors in calculating a safety rating is an upgrade of Petitioner’s safety rating. Therefore, only errors affecting a safety rating will be addressed in a 49 CFR 385.15 proceeding.”). The FMCSA will review a carrier’s safety violations, in addition to the safety rating itself, when, and only when, the [*4]  agency is reviewing a carrier’s appeal of a less-than-“satisfactory” rating, and only if it is necessary to determine whether the FMCSA should change the carrier’s rating. See Resp’t’s Br. 18 n.2 (“To be clear, a carrier who received a ‘conditional’ or ‘unsatisfactory’ rating can challenge particular violations in the course of a § 385.15 proceeding, and FMCSA will correct violation information during that proceeding if the correction is necessary to its decision to upgrade a carrier’s safety rating.”).

The FMCSA provides information to the public about operating motor carriers through a searchable, web-based information database called the Safety Measurement System (“SMS”). See Safety Measurement System, FED. MOTOR CARRIER SAFETY ADMIN., https://ai.fmcsa.dot.gov/sms/ (last visited January 5, 2016). A carrier’s SMS profile displays the carrier’s overall safety rating, as well as specific information about violations that either the FMCSA or other agencies have issued against that carrier. These violations are grouped into seven categories, each of which is represented by a large icon displayed on the front page of the carrier’s profile. If an agency has issued certain violations against the carrier within a given category, [*5]  a large, yellow warning triangle is placed on top of that category icon.1 The FMCSA uses the SMS to collect violation information from a variety of sources, including the separate but related Motor Carrier Management Information System (“MCMIS”), to determine which carriers should be prioritized for inspections. See 79 Fed. Reg. 32,491, 32491-92 (June 5, 2014); 75 Fed. Reg. 18,256, 18,258 (Apr. 9, 2010).

 

1   More specifically, the FMCSA explains on each carrier’s SMS profile that the warning triangles denote that the carrier “exceeds the FMCSA Intervention threshold relative to its safety event grouping based upon roadside data and/or has been cited with one or more serious violations within the past 12 months during an investigation.” J.A. 94. Although warning triangles are removed from the carrier’s main SMS page after the requisite period, they remain visible on the carrier’s SMS history page. See J.A. 145-46.

To maintain the accuracy of the information displayed within the SMS, the FMCSA has created DataQs, “a web-based dispute resolution [system] that allows an individual to challenge data maintained by FMCSA.” Weaver v. FMCSA, 744 F.3d 142, 143, 408 U.S. App. D.C. 361 (D.C. Cir. 2014) (internal quotation marks omitted). The FMCSA allows carriers to use DataQs to challenge those safety violations that the FMCSA will not review through its § 385.15 process. [*6]  See 79 Fed. Reg. at 32,492 (“A driver has always been able to challenge the correctness of a violation that has been cited in a roadside inspection report using the DataQs system, whether a citation has been issued for that violation or not.”). DataQs users submit their requests for review by filling in text fields in a web application. See DataQs Analyst Guide § 3.1, available at https://dataqs.fmcsa.dot.gov/Data/Guide/DataQs_Users_Guide_and_Best_Practices_Manual.pdf. (providing background on the DataQs system). DataQs also permits users to provide additional information by submitting digital documents. See Resp’t’s Br. 16 (“[C]arriers are not only permitted, but encouraged to submit as much supporting documentation as they can when filing a DataQs request.” (citing DataQs Analyst Guide, supra, §§ 4.13-4.16)).

 

The FMCSA initiated an on-site examination of Silverado’s operations in April 2014. In June 2014, after completing that review, the FMCSA found Silverado to have violated a number of safety regulations. See J.A. 49-69. Notwithstanding these violations, the FMCSA issued Silverado a “satisfactory” rating, the highest rating available, presumably because the violations Silverado received were not substantial enough to warrant a lower rating. The FMCSA included these violations on Silverado’s SMS profile, which resulted in the imposition [*7]  of warning triangles over four of the seven categories displayed on Silverado’s profile. See J.A. 96.2

 

2   Silverado’s profile later displayed only three warning triangles after the FMCSA removed the alleged violations listed under the “Hours-of-Service Compliance” category. See J.A. 94; see also Pet’r’s Opening Br. 6 (displaying a screen grab of Silverado’s SMS web profile).

Silverado claims that the public display of these allegedly erroneous violations has caused it to lose several high-value contracts.

Silverado filed a § 385.15 petition with the FMCSA in October 2014. The petition did not challenge Silverado’s “satisfactory” rating; it alleged only that the violations displayed on its SMS profile were erroneous. The FMCSA dismissed Silverado’s petition, stating that “[i]n a petition filed under 49 CFR 385.15, the only relief afforded for any alleged errors in calculating a safety rating is an upgrade of Petitioner’s safety rating.” FMCSA Order, J.A. 13. The agency explained that “[c]hallenges to the impact of the compliance review data [i.e., Silverado’s safety violations] on the SMS [profile] are not within the subject matter jurisdiction of a request for administrative review of a safety rating under 49 C.F.R. 385.15.” Id.

Silverado filed [*8]  a petition for our review of the FMCSA’s dismissal on December 23, 2014. Several months later, in March 2015, Silverado submitted a number of DataQs requests, urging the FMCSA to remove the allegedly erroneous violations posted on its SMS profile.

 

Silverado’s petition for review boils down to two arguments. First, Silverado contests the FMCSA’s dismissal of Silverado’s § 385.15 petition by arguing that the dismissal was arbitrary and capricious under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706.3 Second, it contends that the violations issued against it are invalid because they were not promulgated pursuant to notice-and-comment procedures and because they constitute impermissible sanctions. The first of these arguments lacks merit because the FMCSA was not required to provide Silverado with any more process than it received; the second is foreclosed by our decision in Weaver, 744 F.3d at 144-48.

 

3   Silverado also claims that the FMCSA violated its “administrative due process rights.” See, e.g., Pet’r’s Opening Br. 22, 26. Yet it does not explain from where it derives such a right, or how the alleged violation differs from its claim that the FMCSA acted arbitrarily and capriciously. Accordingly, we will treat Silverado’s [*9]  discussion of “administrative due process” as part and parcel of its arbitrary and capricious claim under 5 U.S.C. § 706.

 

Before reaching these arguments, however, we pause to address Silverado’s criticism of the FMCSA’s DataQs system, which runs throughout Silverado’s briefing. Silverado calls it a “Twitter-like void,” Pet’r’s Opening Br. 22, and “opaque,” Pet’r’s Reply Br. 8. It also complains that “there is no time limit or other requirements obligating the charging state organization to respond” to DataQs requests. Pet’r’s Opening Br. 22. Although the FMCSA contests much of Silverado’s criticism, see, e.g., Resp’t’s Br. 15-16 (arguing that DataQs is not a “twitter-like void” because “carriers . . . face no word limitations” and are “encouraged to submit as much supporting documentations as they can”), at oral argument, the FMCSA acknowledged that there is no deadline by which the FMCSA must respond to a DataQs request. In fact, Silverado submitted its DataQs requests in March 2015 — more than nine months ago — yet the FMCSA has not responded to a number of Silverado’s requests.

Despite this criticism, Silverado explicitly states in its reply brief that “[t]his is not an appeal of or collateral attack [*10]  upon the FMCSA’s DataQ and its deficiencies; rather, this appeal is a challenge to Respondent FMCSA’s failure to correct its damaging and erroneous SMS violations . . . .” Pet’r’s Reply Br. 1; see also id. at 5 (titling a section “Silverado Did Not Challenge and Need Not Have Challenged SMS and DataQ in Its 385.15 Petition Below”). Nor could Silverado mount a challenge to the DataQs system in this proceeding. The record indicates that Silverado did not submit its DataQs requests until approximately three months after it petitioned this Court for review of the FMCSA’s order denying Silverado’s § 385.15 petition. See Ass’n of Flight Attendants-CWA v. Chao, 493 F.3d 155, 158, 377 U.S. App. D.C. 182 (D.C. Cir. 2007) (“[N]o one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.” (quoting Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S. Ct. 459, 82 L. Ed. 638 (1938))); cf. Unemployment Comp. Comm’n v. Aragon, 329 U.S. 143, 155, 67 S. Ct. 245, 91 L. Ed. 136, 11 Alaska 236 (1946) (“A reviewing court usurps the agency’s function when it sets aside the administrative determination upon a ground not theretofore presented . . . .”); Hinson v. NTSB, 57 F.3d 1144, 1149, 313 U.S. App. D.C. 59 (D.C. Cir. 1995) (“[I]n most circumstances a reviewing court should not adjudicate issues not raised in the administrative proceeding below, so that the agency has an opportunity to consider and resolve the objections prior to judicial review, and the reviewing court has the benefit of a full record.” (citing [*11]  United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 36-37, 73 S. Ct. 67, 97 L. Ed. 54 (1952))).

Because Silverado is not challenging the validity or effectiveness of the DataQs system, we will assume, for the purposes of Silverado’s petition, that the DataQs system provides carriers with an adequate process for achieving review over the information displayed on SMS profiles.4

 

4   Certainly, because the DataQs process is the only means by which motor carriers can receive review over certain potentially erroneous violations — violations which are publicly displayed on the FMCSA’s website — we expect that the FMCSA will be particularly mindful of complaints such as Silverado’s, and will work to ensure that motor carriers receive appropriate responses to their DataQs requests in a timely fashion. Should the FMCSA fail to respond in a timely fashion, carriers such as Silverado may seek a writ of mandamus compelling agency action. See, e.g., In re Am. Rivers & Idaho Rivers United, 372 F.3d 413, 418-20, 362 U.S. App. D.C. 46 (D.C. Cir. 2004) (granting mandamus where the agency had failed to respond to a petition under the Endangered Species Act for a significant period of time).

 

Silverado’s arbitrary and capricious claim relies on a flawed fundamental premise: that the FMCSA’s refusal to review safety violations within the confines of a § 385.15 petition is impermissible because it “exempt[s] an entire [*12]  class of on-line summary violations of law from any pre-or-post-violation challenge by the alleged violator.” Pet’r’s Opening Br. 20.

Silverado’s claim must fail because that fundamental premise is incorrect. The DataQs process is not exempt from challenge; carriers are provided with an opportunity to appeal and correct erroneous violations. See DataQs Analyst Guide, supra, § 3.2 (explaining that carriers may use the DataQs system to “request the review of various types of data including . . . data documented during a roadside safety inspection” and “data collected during investigations”); 79 Fed. Reg. at 32,492.

Moreover, an agency’s interpretation of its own regulations is generally “controlling unless plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461, 117 S. Ct. 905, 137 L. Ed. 2d 79 (1997) (internal quotation marks omitted). Here, the FMCSA has interpreted § 385.15 to permit only those petitions that seek review of a carrier’s safety rating and not its individual safety violations. This is a reasonable interpretation. The consequences of a less-than-“satisfactory” rating can be severe — most notably by precluding the carrier from operating in interstate commerce. See 49 U.S.C. § 31144(c)(1); 49 C.F.R. § 385.13. It is therefore sensible for the FMCSA to prioritize review for those carriers with sub-par ratings; it [*13]  ensures that the FMCSA’s compliance review process precludes only those carriers that should, in fact, be kept from operating. Carriers with satisfactory ratings may still have their violations reviewed; they simply must use the DataQs system, rather than the § 385.15 review process, to do so.

 

Silverado’s remaining argument — that the FMCSA, in issuing safety violations against Silverado, failed to comply with notice-and-comment procedures and levied impermissible sanctions against it — is not properly before this Court. According to our decision in Weaver, such challenges must be brought in the first instance before the District Court.

In Weaver, petitioners challenged the FMCSA’s refusal to remove a safety violation contained in an individual driver’s MCMIS profile after petitioners filed a DataQs request with the FMCSA seeking the violation’s removal. See 744 F.3d at 143-44. Petitioners brought their challenge to the FMCSA’s refusal directly to this Court pursuant to the Hobbs Act, 28 U.S.C. § 2342, which provides this Court with exclusive jurisdiction over a determination that concerns, among other things, the validity of “all rules, regulations or final orders” of the FMCSA. 28 U.S.C. § 2342(3); see also Weaver, 744 F.3d at 144-45; Am. Trucking Ass’ns, Inc. v. FMCSA, 724 F.3d 243, 246, 406 U.S. App. D.C. 312 (D.C. Cir. 2013). We held that the FMCSA’s refusal [*14]  to remove the carrier’s violation did not constitute a final agency action under the Hobbs Act, and that therefore petitioners needed to bring their challenge in the District Court. Weaver, 744 F.3d at 146-48.

Following Weaver, we hold that Silverado’s challenge to its safety violations must also be brought initially before the District Court. Accordingly, we lack authority to hear Silverado’s safety violations challenge.

***

For the foregoing reasons, we deny the petition for review.

So ordered.