author: KANNE, Circuit Judge.

text:
    Ronald Marion CARPENTER; Jr., Petitioner-Appellant, v. Timothy DOUMA, Respondent-Appellee.
    No. 15-1688
    United States Court of Appeals, Seventh Circuit.
    Argued September 8, 2016
    Decided October 28, 2016

      William E. Keeler, III, SCOPELITIS, GARVIN, LIGHT, HANSON & FEARY, P.C., Samantha R. Schmid, Benjamin A. Sparks, CRIVELLO CARLSON, S.C., Milwaukee, WI, for Petitioner-Appellant.

      Sandra Lynn Tarver, OFFICE OF THE ATTORNEY GENERAL, Madison, WI, for Respondent-Appellee.
    Before WOOD, Chief Judge, and EANNE and HAMILTON, Circuit Judges.
   KANNE, Circuit Judge.

A jury convicted Ronald Marion Carpenter, Jr. of kidnapping, false imprisonment, and several counts of sexual assault. Carpenter challenged his conviction on both direct and collateral review in Wisconsin state court. His conviction was affirmed, and his state petition for a writ of habeas corpus was denied.

Carpenter then filed a petition for a writ of habeas corpus in the Eastern District of Wisconsin. By the time he filed this federal petition, however, the one-year statutory limitation period had already passed. The district court dismissed Carpenter’s petition as untimely. Carpenter does not dispute that his petition was untimely; instead, he argues that his delay should be equitably tolled and that we should hear the merits of his case. Because Carpenter has not met the standard for equitable tolling, we agree with the district court. We hold that Carpenter’s petition is untimely and thus was properly denied.

I. BackgRound

On August 27, 2008, a jury in Milwaukee County Circuit Court found Carpenter guilty of kidnapping, false imprisonment, four counts of second-degree sexual assault, and four counts of first-degree sexual assault. Carpenter was sentenced to fifty-nine years’ imprisonment followed by twenty-four years of extended supervision. His conviction and sentence were affirmed on appeal, and the Wisconsin Supreme Court denied Carpenter’s petition for review.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), “A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). This limitation period runs from the latest of several dates, only one of which is relevant to this case: “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” § 2244(d)(1)(A). This one-year period is statutorily tolled for the “time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending-” § 2244(d)(2).

Carpenter’s conviction became final on January 27, 2012, when the' period for seeking certiorari expired. Because Carpenter had filed a petition for a supervisory writ in the Wisconsin Supreme Court on November 4, 2011, and because that petition remained pending when his conviction became final, the one-year AEDPA limitations period was statutorily tolled until February 23, 2012, when the Wisconsin Supreme Court rejected that petition. Carpenter’s one-year window under AEDPA thus began on February 23, 2012.

The statutory period was again tolled on October 18, 2012—after running for 238 days—when Carpenter filed a petition for a writ of habeas corpus in the Wisconsin Court of Appeals. The court denied that petition. The Wisconsin Supreme Court upheld the denial of that petition on August 1, 2013, and the AEDPA period began to run again, leaving Carpenter with 127 days to file his habeas petition in federal court. Carpenter’s window under AEDPA closed on December 6, 2013.

Carpenter didn’t file his petition for a writ of habeas corpus in the Eastern District of Wisconsin until July 3, 2014, nearly seven months later. Carpenter does not dispute that the one-year limitations period under AEDPA expired before he filed his federal habeas corpus petition. Instead, he argues that his delay should be excused under the doctrine of equitable tolling. The district court rejected that argument. This appeal followed.

II. Analysis

In some circumstances, the doctrine of equitable tolling permits a federal habeas petitioner to overcome a breach of AEDPA’s one-year limitations period. Taylor v. Michael, 724 F.3d 806, 810 (7th Cir. 2013). Although not a “chimera—something that exists only in the imagination,” Socha v. Boughton, 763 F.3d 674, 684 (7th Cir. 2014), equitable tolling is an extraordinary remedy that is “rarely granted.” Obriecht v. Foster, 727 F.3d 744, 748 (7th Cir. 2013) (quoting Simms v. Acevedo, 595 F.3d 774, 781 (7th Cir. 2010)). A habeas petitioner is entitled to equitable tolling only if he shows “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (inter nal quotation marks omitted). The habeas petitioner bears the burden of demonstrating both elements of the Holland test. Williams v. Buss, 538 F.3d 683, 685 (7th Cir. 2008). If the petitioner cannot demonstrate either of the two elements, then equitable tolling will not be applied. Menominee Indian Tribe of Wisconsin v. United States, — U.S. -, 136 S.Ct. 750, 755-56, 193 L,Ed.2d 652 (2016); Lawrence v. Florida, 549 U.S. 327, 336-37, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007) (rejecting equitable tolling- without addressing diligent pursuit because the petitioner clearly could not demonstrate extraordinary circumstances).

Carpenter argues that both elements of the Holland test are met in this case. First, he argues that he diligently pursued his rights throughout the AEDPA period by filing various appeals, motions, and other documents in the Wisconsin and federal courts. Second, he argues that a variety of exceptional circumstances prevented his timely filing. The district court rejected Carpenter’s arguments for equitable tolling and dismissed his petition as untimely. “We review the decision to deny equitable tolling for an abuse of discretion.” Obriecht, 727 F.3d at 748 (quoting Simms, 595 F.3d at 781).

A, Diligent Pursuit

“The diligence required for equitable tolling purposes is reasonable diligence ... not maximum feasible diligence,” Holland, 560 U.S. at 653, 130 S.Ct. 2549 (internal citations and quotation marks omitted). Thus, to qualify for equitable tolling,' Carpenter had to demonstrate that he was reasonably diligent in pursuing his rights throughout the limitations period and until he finally filed his untimely habeas petition on July 3, 2014.

The Supreme Court in Holland found that a habeas petitioner had exercised reasonable diligence by writing his attorney “numerous letters seeking crucial information and providing direction”; “repeatedly contacting] the state courts, their clerks, and the Florida State Bar Association”; and preparing “his own habeas petition pro se and promptly fil[ing] it with the District Court” on the day he discovered that his AEDPA clock had expired. Id. In Socha, we similarly held that a habeas petitioner had exercised reasonable diligence by repeatedly writing his attorney requesting access to his file, pleading with the public defender’s office for help, and alerting the court “before the deadline arrived” that he sought to preserve his rights. 763 F.3d at 687-88.

Carpenter argues that his case is similar to Socha because he filed motions in federal court during the limitations period expressing his desire to preserve his rights. We disagree.

Time enough, Carpenter did file two motions in federal court to stay and hold in abeyance his federal petition for habeas corpus. He filed the first motion on October 19, 2012, after the AEDPA limitations period had run for 238 days. He. filed the second motion on January 13, 2014, after the AEDPA limitations period had expired. The filing of these motions, however, does not demonstrate that Carpenter diligently pursued his rights.

Although the first motion is similar.to the one that the petitioner in Socha filed in that it was filed before the AEDPA limitations period expired, the filing of that motion doesn’t demonstrate that Carpenter exercised reasonable diligence. To the contrary, Carpenter’s actions after filing that motion affirmatively undermine a finding of reasonable diligence. The district court denied that motion on October 22, 2012, because Carpenter had not yet filed a federal habeas petition. In so doing, District Judge Adelman explained that a stay cannot be granted on a habeas petition until that habeas petition is filed in the district court. Despite Judge Adelman’s explanation, Carpenter waited another twenty-one months, nearly seven months beyond the expiration of the one-year limitations period, to file his federal habeas petition. That extended delay in filing in the face of the' district court’s procedural instruction to the contrary is not reasonable diligence. See Johnson v. McCaughtry, 265 F.3d 569, 565-66 (7th Cir. 2001) (holding that a petitioner who “wasted” a significant number of days was not entitled to equitable tolling despite errors made, by the trial court and the court of appeals).

Carpenter’s filing of the second'motion also does not qualify as reasonable diligence for two reasons. First, the second motion was untimely—filed over a month after the AEDPA limitations period had expired. Thus, the second motion provides no support for the comparison to Socha, in which the petitioner filed á motion to" extend his AEDPA limitations period before that limitations period had expired. 763 F.3d at 687-88. Second, even if that motion had been timely, it still would not qualify as reasonable diligence. By filing that second motion for a stay and abeyance, rather than á petition for a writ of habeas corpus, Carpenter again flatly ignored the district court’s procedural instructions in its prior order denying the first motion.

Here, unlike the petitioner in Socha, Carpenter did not exercise reasonable diligence in pursuit of his rights. Although he did file two federal motions seeking an extension of time to file a federal habeas action, he simply ignored the district court’s instructions regarding the proper way to seek such an extension. The district court did not abuse its discretion in rejecting Carpenter’s,. .argument for equitable tolling on this ground.

B. Extraordinary Circumstances

Because we agree with the district court that Carpenter failed to establish diligent pursuit, we conclude that he is not entitled to equitable tolling. But because the district court also considered Carpenter’s arguments regarding the second element of the Holland test—extraordinary circumstances—■we also briefly address this matter. See Obriecht, 727 F.3d at 750.

In order to qualify for equitable tolling, Carpenter also had to demonstrate that “[e]xtraordinary circumstances far beyond [his] control ... prevented timely filing.” United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000). The Supreme Court recently reiterated that this element is met “only where the circumstances that caused a litigant’s delay are both extraordinary and beyond [his] control.” Menominee Indian, 136 S.Ct. at 756 (2016).

Carpenter argues that at least six circumstances prevented his timely filing. These include his (1) lack of legal training; (2) lack of appointed counsel during portions of the appeals process; (3) physical and mental health issues; (4) removal from his correctional facility to address his health issues; (5) inability to obtain a legal loan; and (6) conflicts with appointed counsel during his state appeal.

Carpenter concedes that some or all of these circumstances, taken alone, would be insufficient to justify equitable tolling. He is correct. We have held that “garden variety” claims are insufficient to justify equitable tolling. Obriecht, 727 F.3d at 749 (quoting Holland, 560 U.S. at 651-52, 130 S.Ct. 2549); Griffith v. Rednour, 614 F.3d 328, 331 (7th Cir. 2010). As the district court noted, all of the circumstances Carpenter alleges “are common parts of prison life.” Carpenter v. Dittmann, No. 14-CV-771-JPS, 2015 WL 687499, at *5 (E.D. Wis. Feb. 18, 2015). As such, most of these circumstances, taken alone, do not qualify as “extraordinary.”

Instead, Carpenter argues that these circumstances, when combined, rise to the necessary level of “extraordinary,” so that equitable tolling is permissible. Carpenter is also correct that we look at “the entire hand” that he was dealt and use a “flexible standard that encompasses all of the circumstances that he faced and the cumulative effect of those circumstances” to determine whether they were “extraordinary’ and truly prevented timely filing of his habeas petition. Socha, 763 F.3d at 686 (internal quotation marks omitted) (citing Holland, 560 U.S, at 650, 130 S.Ct. 2549). But because these circumstances, even when combined, are nothing but ordinary, we agree with the district court and reject Carpenter’s argument for equitable tolling on this ground as well.

The only arguably extraordinary circumstance that Carpenter faced involved his physical and mental health issues. We have held that mental incompetence can qualify as an extraordinary circumstance justifying equitable tolling. Davis v. Humphreys, 747 F.3d 497, 498-500 (7th Cir. 2014). We have also held that mental illness can toll a statute of limitations, but “only if the illness in fact prevents the sufferer from managing his affairs and thus from understanding his legal rights and acting upon them.” Obriecht, 727 F.3d at 750-51 (quoting Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996)). Likewise, we do not doubt that a physical illness or other health issue could also justify equitable tolling if that issue was severe enough to actually prevent timely filing.

The issue here is that Carpenter failed to meet his burden of demonstrating that his physical and mental health issues, even when combined with the other circumstances he classifies as extraordinary, “actually impaired his ability to pursue his claims.” Id. at 751. What Carpenter alleges is that he was incarcerated, that he suffered from blood clots and other health issues, and that he was removed from his correctional facility for a few days to address those issues. Carpenter does not explain how those issues kept him from filing his habeas petition during the AEDPA limitations period or for nearly seven months after it.

Again, equitable tolling is an extraordinary remedy that is “rarely granted.” Obriecht, 727 F.3d at 748. In Socha, we applied equitable tolling for a petitioner who faced hurdles that were “nearly insurmountable.” 763 F.3d at 686. Athough we recognize that Carpenter’s circumstances may have made it more difficult for him to file a petition for habeas corpus, we do .not believe that the district court abused its discretion when it found that, “this is not an extraordinary case.” Carpenter v. Dittmann, No. 14-CV-771-JPS, 2015 WL 687499, at *5 (E.D. Wis. Feb. 18, 2015). Carpenter’s petition for habeas corpus was properly denied as untimely.

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s denial of the petition for a writ of habeas corpus.

      . Carpenter makes other arguments in his petition including that he was denied the right to a public trial, that his trial counsel was ineffective, and that he should have been allowed to proceed pro s& on appeal; however, because we find that his petition is untimely, we do not address these other arguments.

      . These motions were filed in two separate miscellaneous cases in the Eastern District of Wisconsin. The first motion was filed in Case No. 12-MC-66 before District Judge Lynn Adelman. The second motion was filed in Case No. 14-MC-5 before District Judge C. N. Clevert, Jr.


source: Caselaw Access Project

author: POSNER, Circuit Judge,

license: Public Domain

text:
    Michael KOZIARA, Plaintiff-Appellee, v. BNSF RAILWAY CO., Defendant-Appellant.
    No. 16-1577
    United States Court of Appeals, Seventh Circuit.
    Argued September 20, 2016
    Decided October 31, 2016
    Matthew H. Morgan, Nicholas D. Thompson, Nichols Krister, PLLP, Minneapolis, MN, Adam W. Hansen, Apollo Law LLC, Minneapolis, MN, James H. Raster, Minneapolis, MN, for Plaintiff-Appellee.
    Bruce Jay Douglas, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Minneapolis, MN, Jacqueline M. Holmes, Jones Day, Washington, DC, for Defendant-Appellant.
    Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
   POSNER, Circuit Judge,

The Federal Railroad Safety Act forbids a railroad to discharge or otherwise discriminate against an employee for conduct protected by the Act, including notifying the railroad that he has. suffered a work-related injury. 49 U.S.C. § 20109(a), (a)(4). The plaintiff in this case was employed by BNSF Railway Company, the second-largest North American freight railroad, and brought this suit against the railroad for violating the provisions of the Railroad Safety Act that we just .cited. A jury returned a verdict in favor of the plaintiff and awarded him damages, and the defendant, having failed to persuade the district judge to award judgment to it despite the jury’s verdict, has appealed.

The plaintiff was a track foreman supervising crews of 50 to 100 employees responsible for track maintenance. The company required employees to “be careful to prevent injuring themselves” and (what seems equivalent) not to be “careless of the safety of themselves.” In addition the railroad makes theft a ground for dismissing an employee and goes further by stating that it has “a zero tolerance policy for theft” and indeed “in all cases” the “sanction [for theft] .•.. is dismissal ... regardless of [tjie employee’s] length of service” or “the monetary value of whatever was stolen.”

On September 9, 2010, the plaintiff was supervising a crew assigned to remove and reinstall crossing planks on a segment of the railroad’s line. Crossing planks' are pieces of timber installed at railroad crossings to enable cars and trucks to drive over the tracks. They are fastened to the track bed by means of large wooden screws called “lags” that are removed with a hydraulic tool before a crossing plank is lifted (the purpose of lifting the crossing plank being to allow maintenance work on the track). On the day in question the crew had difficulty removing one of the planks in the usual way, and with the plaintiffs approval a member of the crew named Zielke used a front-end loader—a tractor-like vehicle equipped in this instance with a forklift that could be used to pry a plank loose without removing any of the lags—to remove the plank. The procedure caused the plank to fly loose just as the plaintiff was walking into the center of the track, and to strike one of his legs.

Though at first he thought he’d just bruised his leg, several days later he went to his doctor and learned that he’d fractured his tibia (shinbone). After first lying to two of his coworkers that he’d been injured at home, on advice of a union official and a 'lawyer affiliated with the union he told his supervisor, Veitz, that he’d been injured by the plank and was going to fill out an injury report. Veitz told him to submit the report to someone in management, which he did. The company accepted the report and paid his medical bills.

BNSF has a policy of investigating all reported injuries by- staging a reenactment of the accident in order to learn how it happened. Veitz staged the reenactment and concluded that the plaintiff had been careless in walking into the crossing in which the front-end loader was busy trying to remove the plank, thus placing himself in danger of being hit by the plank as it came off the ground—and hit he was.

A week after the reenactment a member of the crew that the plaintiff had been supervising told Veitz that he thought the plaintiff might have been injui’ed ten days before the front-end loader fiasco—while removing railroad ties from railroad property. (Railroad ties typically are wooden strips laid underneath and horizontal to the. rails to provide support for them.) Veitz requested a preliminary investigation of the theft allegation, which concluded that theft charges were warranted. Pursuant to the railroad’s collective bargaining agreement with the plaintiffs union, the company conducted a formal investigation presided over by railroad managers who’d been trained to serve as hearing officers and had not themselves been involved in the alleged misconduct of the employee being investigated. Actually there were two investigations: one of the plaintiffs taking the railroad ties without permission and the other of his carelessness with regard to the front-end loader—carelessness that had resulted in the medical expenses that the railroad had paid and did not seek, and has not sought, reimbursement for from him. For his carelessness (which had cost the company the medical expenses), the company decided that á 30-day suspension would be adequate punishment. But that decision quickly became moot because the company also decided that he should be discharged because of the theft, consistent with the company policy that we quoted earlier.

Although at the hearing the plaintiff argued that Veitz had given him permission to take the ties, which he planned to give to a friend who had a farm, Veitz testified that he’d never given such permission. It would have been especially irresponsible for Veitz to have given permission because the railroad ties were soaked in creosote, and as another manager at BNSF testified without contradiction, “we do not give or sell creosote products to employees or the general public and there’s reasons for it. That’s bold letters. We don’t do it.” There are indeed reasons—compelling ones. As the U.S. Environméntal Protection Agency explains, “products containing creosote 'as the active ingredient are.used to protect wood against termites, fungi, mites and other pests that can degrade or threaten the integrity of wood products. These treated wood products are used in outdoor settings such as in railroad ties and utility poles.... [But] creosote is not approved to treat wood for residential use, including landscaping timbers or garden borders,” because materials coated with creosote can be hazardous (emphasis added). EPA, “Creosote,” www.epa.gov/ingredients-used-pesticide-products/creosote (visited Oct. 28, 2016, as were the other websites cited in this opinion); see also Agency for Toxic Substances & Disease Registration, Toxic Substances Portal—Creosote, “Public Health Statement for Creosote,” www. atsdr.cdc.gov/phs/phs.asp?id=64&tid=18. To allow the plaintiff to carry off creosote-treated railroad ties to a farm, where they could do real damage, would have exposed the railroad to litigation and Veitz to the risk of a swift firing.

One would have expected the plaintiff, with his extensive experience as a track foreman, to have known better than to give creosote-soaked railroad ties to a farmer, thereby compounding his theft. And that the theft had been discovered in the course of an investigation triggered by the injury report obviously did not prevent the railroad from concluding that he had stolen the ties. For “once an employer learns about employee wrongdoing that would lead to a legitimate discharge, we cannot require the employer to ignore the information, even if it is acquired during the course of discovery in a suit against the employer” or, we add, in the course of some other procedure, including an investigation. McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 362, 115 S.Ct 879, 130 L.Ed.2d 852 (1995).

Both the Railway Labor Act, 45 U.S.C. § 153(i), .and the railroad’s collective bargaining agreement with the plaintiffs union, entitled him to appeal the 30-day suspension, plus his discharge from the railroad’s employment, to the National Railroad Adjustment Board (NRAB), an arbitral body established pursuant to the Act. The plaintiff did appeal, and the union supported him, but the Board denied both appeals, remarking that the railroad had proved that the plaintiff had “failed to be alert and attentive when he did not safely remove a crossing board” and that the. plaintiff had “failed to prove that ... Veitz gave him permission to remove the ties.”

Having struck out with the NRAB, the plaintiff filed a complaint with OSHA, but OSHA rejected his complaint on the same grounds on which the adjustment board had rejected it. (OSHA, the acronym for the Occupational Safety and Health Administration, is of course employee-friendly.) The plaintiff appealed OSHA’s finding, which was preliminary. But because OSHA did not issue a final administrative decision within 210 days after his initial complaint, see 49 U.S.C. § 20109(d)(3), he was allowed to file this lawsuit, and did, though not till three years after the accident. Much of the delay, however, was attributable to an OSHA investigation that though protracted found no wrongdoing on the part of the railroad.

The suit accuses the railroad of having retaliated against the plaintiff in violation of the Federal Railroad Safety Act, which as we noted earlier forbids a railroad to retaliate against an employee (as by firing him) for his having notified the railroad that he has suffered a work-related personal injury, incurring medical expenses that the railroad might be required to cover. The railroad might also be required to report the injury to the Federal Railroad Administration, which regulates railroad safety. See U.S. Dept, of Transportation, Fedéral Railroad Administration, “Railroad Safety,”- www.fra.d0t.g0v/Page/P 0010. But the parties do not tell' us whether the injury to the plaintiff in this case had- to be—or was—reported to the FRA. The plaintiffs medical expenses were below the applicable threshold, see 49 C.F.R. § 225.19(e), and though' it is- not entirely clear whether the threshold is applicable to ■physical injuries as distinct from damage to equipment, the rail bed, etc., the better interpretation is that it is indeed applicable to personal injuries rather than to equipment, because there is a separate schedule of reporting thresholds for equipment damage. See 49 C.F.R. § 225.19(c).

A further complication worth at least brief notice is introduced by the Federal Railroad Administration’s FORM FRA F 6180.55a, 49 C.F.R. § 225.21(c), “Railroad Injury and Illness,” which like the regulation we cited earlier lists requirements for reporting work-related injuries to the FRA. But again it is uncertain whether the plaintiffs injury was required to be reported. The form treats x-rays and also “soft” restraints, which might well include a walking boot, ■ as “first aid,” which doesn’t have to be reported. The plaintiff had an x-ray and was given a walking boot; that was the extent of his medical treatment—indicating by the way that it was a mild fracture. See Dr. David Geier, “Tibia Fractures” (Jan. 18, 2011), www.drdavidgeier. com/tibia-fractures. Dr. Geier mentions a walking boot as a treatment for a mild tibia fracture (if it’s not mild, you can’t walk; Koziara walked).

Another regulation, 49 C.F.R. § 225.12, addresses what are called “human factor” injuries—and Koziara was the human factor, having caused his injury by his carelessness, which is why he was given the 30-day suspension. While a possible motive for retaliation against an injured employee would be the railroad’s interest in reducing its potential liability for employees’ medical expenses, there is no indication that the decision to fire the plaintiff was related to the railroad’s having paid his medical expenses. To fire an otherwise satisfactory employee for an accident that not only imposed a trivial cost on BNSF but would not get the railroad in trouble with the regulatory authorities wouldn’t make sense. In contrast, to fire him for stealing railroad property—potentially poisonous railroad property because consisting of creosote-soaked railroad ties—made sense. •

The slightness of the medical expenses makes it unlikely that the railroad would have gotten into trouble with the Federal Railroad Administration by filing an injury report, or for that matter by not filing such a report (we don’t know whether BNSF filed a report of the accident with the FRA.) Although the plaintiffs medical expenses are not in the record; they could not have exceeded $600, as the boot would have cost only $100 and the x-ray no more than $500 and those were the only medical treatments the plaintiff received. These costs were peanuts to BNSF, now a wholly owned subsidiary of Berkshire Hathaway, Warren Buffett’s company—and a subsidiary worth many billions of dollars.

It’s true that if a jury finds that an employer’s explanation for an adverse employment action is false, it may infer that the employer’s real reason for the action was unlawful. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). But to have found that the plaintiffs carelessness and theft were pretexts for firing him on a forbidden ground, the jury would have had to find that BNSF had lied about the reason for the .action it took against him. And the plaintiff presented no evidence of that. He claims that Veitz lied about giving him permission to remove the ties, but does not claim that the railroad believed that Veitz had lied in reporting the plaintiff for having stolen the railroad ties, yet fired him in spite of knowing that Veitz had lied. If the railroad had thought Veitz had tried to frame a worker, Veitz would have been forced to walk the plank, not the victim of his lie.

A plaintiff is master of his ease. Koziara could have argued pretext, but chose instead to rest on the contention that he should be deemed to have won his suit just because the railroad never would have discovered the theft had he not filed an injury report (which led to the investigation, which led to the discovery of the theft). He chose his ground, and it is a legally bad one because the filing of the report was not a proximate cause of his being fired; having failed to make a backup pretext argument, he does not get a do-over.

The plaintiff had to show that his injury report was a “contributing factor” in his being fired. 49 U.S.C. §§ 20109(d)(2)(Á)(í); 42121(b)(2)(B)®. He never showed that, but the judge thought that, as a matter of law, he had, and narrowed the jury questions accordingly, resulting in 'the verdict in his favor that the railroad challenges. The judge remarked that the plaintiffs “injury report initiated the events that led to his discipline, and was therefore a contributing factor to the adverse actions that he suffered” (emphasis the judge’s). But in so remarking he failed to distinguish between causation and proximate causation. The former term embraces causes that have no legal significance. Had the plaintiff never been born or never worked for BNSF he would neither have been hurt by the plank flung at him by the energetic front-end loader nor have stolen railroad ties .from the railroad. But that doesn’t mean that his being born or his being employed by the railroad were legally cognizable causes of his being fired.

Proximate causation in contrast creates legal liability, “proximate” denoting in law a relation that has legal significance. There are different definitions of “proximate cause,” however, and in CSX Transportation, Inc. v. McBride, 564 U.S. 685, 131 S.Ct. 2630, 2638, 180 L.Ed.2d 637 (2011), a case under the Federal Employers’ Liability Act, the Supreme Court rejected a definition that required that the defendant’s negligence be “the sole, efficient [or immediate] producing cause” of the injury in order to be actionable. That would be a pertinent consideration in this case were the plaintiff arguing that he was injured by the negligence of his employer, but he is not arguing that. He caused himself to be injured by being careless, and to be fired for stealing railroad property-r-causal acts that the law deems to have legal consequences if the conduct in question—in this case carelessness and theft—is lawfully forbidden, as it was by a combination of the railroad’s announced employment policies and the terms of its collective bargaining agreement with the union that represents employees such as the plaintiff.

The Federal Railroad Safety Act does not punish railroads for disciplining (including firing) employees unless the discipline is retaliatory. There is no evidence of that in this case—no evidence of the usual forms of employment discrimination, certainly, and no evidence that the suspension and discharge of the plaintiff were motivated by animus. It is true that a workman who was standing near the plaintiff when the plank soared was not disciplined for carelessness; but he wasn’t injured at all, which allowed the company to infer that he wasn’t careless, or at least not sufficiently careless to warrant an investigation. As for the argument in the plaintiffs brief that it was “common for employees to take used railroad ties” without being disciplined for doing so, the record contains no instances of BNSF’s declining to discipline an employee who was found to have taken ties without permission. The plaintiff does not argue that BNSF believed that he was permitted to take the railroad ties, in which event the stated reason for his being fired would have been pretextual.

The district judge’s remark that the plaintiffs injury report to the company had initiated the events that led to his being fired and therefore had contributed to it is a-further example of confusing a cause with a proximate cause; The plaintiffs having been born was an initiating event without which he would not exist, but obviously an event devoid of legal significance. Veitz agreed that the plaintiff should submit an injury report, but based his conclusion that the plaintiff had been careless not on the report, which merely described the injury, but on the reenactment of the accident—and the reenactment, which was the proximate cause of the decision to suspend the plaintiff, had no connection to the- injury report, which merely described medical treatment—not carelessness and not theft.

And by the way there is nothing sinister, as the term “initiating event” may seem to suggest, in deeming the submission of an injury report a proper occasion for an employer’s conducting an investigation. An injury report is a normal trigger for an investigation designed to uncover facts that can prompt corrective action that will reduce the likelihood of a future injury.

In addressing the parties’ motions for summary judgment, the district judge made some legal rulings intended to narrow the issues for trial. The critical ruling—a grant of partial summary judgment in favor of the plaintiff—-was that the injury report was a “contributing factor” to his being fired. In Ortiz v. Jordan, 562 U.S. 180, 131 S.Ct. 884, 888-89, 178 L.Ed.2d 703 (2011), the Supreme Court held that an order denying summary judgment can’t be appealed after a full trial on the merits has been held. “The order retains its interlocutory character as simply a step along the route to final judgment. Once the case proceeds to trial, the full record developed in court supersedes the record existing at the time of the summary judgment motion.” Id. at 889 (citation omitted). A grant of partial summary judgment is similarly just a way station en route to a final judgment. The grant of partial summary judgment in this case narrowed the case, as the district judge believed, to two issues for trial. The first was whether the injury report had been prepared and submitted by the plaintiff in good faith,, and the second whether the railroad would have feed him had he not filed it. And on both those issues the jury sided with the plaintiff. Rightly on the first issue; there is no indication that the injury report was not submitted in good faith—the plaintiff had after all been injured, and the report described the injury accurately.

But as for the second issue—whether the railroad would have terminated the plaintiff had he not made an injury report—-the answer was yes (not no, as the jury thought), because there is no evidence that the railroad’s decision to fire him was related to his having made the report. So one sees that the district judge’s “contributing factor” ruling on summary judgment misled the jury. The railroad provided un-rebutted evidence that it believed that the plaintiff had stolen the ties, and the plaintiff points to no evidence that BNSF would fail to fire an employee whom it discovered to have stolen from the company and no evidence that BNSF disbelieved Veitz’s account.

BNSF thus proved its affirmative defense to the charge that it fired the plaintiff because he filed (with his superior’s agreement) an injury report citing negligible medical expenses. Consistent with language in its rules of employment quoted earlier, the company appears to have a firm policy of firing employees discovered to have stolen company property. What it does not have, so far as appears, is a policy of singling out for discipline an employee who submits an injury report. There is no basis in the record for supposing that had the plaintiff not submitted an injury .report but BNSF Rad nonetheless, discovered the stolen railroad'property, he wouldn’t have been fired. Therefore we needn’t give the plaintiff a do-over trial.

We end by expressing doubt that the plaintiff should have been entitled to bring this lawsuit at all. For remember that he did so years after he had struck out first with the arbitral board (the National Railroad Adjustment Board), which ruled that he’d “failed to prove that ... Veitz gave him permission to remove the ties,” and then with OSHA, which rejected his complaint on the same- grounds on which the adjustment board had ■ rejected it. Ordinarily arbitration is final; having lost to the arbitrator or arbitrators, you can’t.restart the entire process by suing. We don’t say the plaintiff was precluded (by some doctrine of preclusion, such as res judicata) from suing, only that the kind of protracted litigation that he initiated and pursued is suggestive of desperation rather than of merit.

We conclude that the judgment must be reversed-with instructions to dismiss the suit.


author: HAMILTON, Circuit Judge.

text:
    OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION, INC., Mark Elrod, and Richard Pingel, Petitioners, v. UNITED STATES DEPARTMENT OF TRANSPORTATION, et al., Respondents.
    No. 15-3756
    United States Court of Appeals, Seventh Circuit.
    Argued September 13, 2016
    Decided October 31, 2016

      Paul D. Cullen, Sr., Paul D. Cullen, Jr., Attorneys, Cullen Law Firm, Washington, DC, for Petitioners.
    Kathryn B. Thomson, Attorney, T.F. Scott Darling, III, Department of Transportation, Office of. the General Counsel, Joshua P. Waldman, Matthew M. Collette, Loretta E. Lynch, Attorneys, Department of Justice, Civil Division, Appellate Staff, Washington, DC, for Respondents..
    Richard Pianka, Attorney, American Trucking Associations, Arlington, VA, for Amicus Curiae American Trucking Associations, Incorporated.
    R. Jay Taylor, Jr., Attorney, Scopelitis, Garvin, Light,' Hanson & Feary, P.C., Indianapolis, IN, for Amici Guriae Advocates for Highway and Auto Safety, Trucking Alliance for Driver Safety and Security.
    Before BAUER, KANNE, and HAMILTON, Circuit Judges.
   HAMILTON, Circuit Judge.

Since 1935, federal law has regulated the hours of service of truck drivers operating in interstate commerce. The regulations are intended to reduce fatigue-related accidents, and they require drivers to keep paper records showing their driving time and other on-duty time. Compliance has long been an issue, though, because it is easy to insert an error in paper records, whether intentionally or not.

In 2012, Congress directed the Department of Transportation to issue regulations to require most interstate commercial motor vehicles to install electronic logging devices (ELDs). ELDs are linked to vehicle engines and automatically record data relevant to the hours of service regulations: whether the engine is running, the time, and the vehicle’s approximate location. The devices are intended to improve drivers’ compliance with the regulations, to decrease paperwork, and ultimately to reduce the number of fatigue-related accidents. Congress instructed the Department in promulgating , the rule to consider other factors as well, such as driver privacy and preventing forms of harassment enabled by the ELDs. 49 U.S.C. § 31137. The Federal Motor Carrier Safety Administration, which is part of the Department of Transportation, promulgated the final rule requiring ELDs in 2015. Electronic Logging Devices and Hours of Service Supporting Documents, 80 Fed, Reg. 78,292 (Dec. 16, 2015) (“Final ELD Rule”), codified in 49 C.F.R. Pts. 385, 386, 390, and 395.

Petitioners Mark Elrod, Richard Pingel, and the Owner-Operator Independent Drivers Association (OOIDA) brought this action for judicial review of the final rule. Elrod and Pingel are professional truck drivers, and OOIDA is a trade organization. They argue that the agency’s final rule should be vacated for five reasons. We uphold the final rule and deny their petition.

Petitioners claim first that the final rule is contrary to law because it permits ELDs that are not entirely automatic. We disagree. Petitioners’ reading of the statute seeks to pit one statutory requirement against another rather than allow the agency to balance, competing policy goals endorsed by Congress. Second, petitioners argue that the agency used too narrow a definition of “harassment” that will not sufficiently protect drivers. This claim also fails. When defining harassment, the agency sought input from drivers, motor carriers, and trade organizations; it' considered administrative factors; and it ultimately provided a reasonable definition of the term. Third, petitioners argue that the agency’s cost-benefit analysis was inadequate -and fails to justify implementation of the ELD rule. However, the agency did not need to conduct a cost-benefit analysis for this rule, which was mandated by Congress. Even if such analysis were required, the studies were adequate. Fourth, petitioners argue that the agency did not-sufficiently consider confidentiality protections for drivers. The agency, however, adopted a reasonable approach, to protect drivers in this regard.

Fifth, petitioners • argue that the ELD mandate imposes, in effect, an unconstitutional search and/or seizure on truck drivers. We find no Fourth Amendment violation. Whether or not the rule itself imposes a search or a seizure, inspection of data recorded on an ELD would fall within the “pervasively regulated industry” exception to the warrant requirement. The agency’s administrative inspection scheme for such information is reasonable.'

I. Factual and Regulatory Background

The agency’s road to the 2015 final rule was long and rocky. That history is relevant to several of petitioners’ arguments, particularly the claims that ELDs must be entirely automatic, that ELD benefits do not outweigh their costs, and that the ELD mandate violates the Fourth Amendment.

A. Federal Regulation of Commercial Motor Vehicles

In the early twentieth century, commercial motor vehicles were largely regulated by individual states. See John J. George, Federal Motor Carrier Act of 1935, 21 Cornell L. Rev. 249, 249-51 (1936). This decentralized system ran into dormant commerce clause problems. In a series of cases, the Supreme Court struck down state regulations of commercial motor vehicles that interfered with interstate commerce. See, e.g., Buck v. Kuykendall, 267 U.S. 307, 45 S.Ct. 324, 69 L.Ed. 623 (1925) (striking down state’s attempt to require certificate of “public convenience” to compete in commercial interstate transportation); George W. Bush & Sons Co. v. Malay, 267 U.S. 317, 45 S.Ct. 326, 69 L.Ed. 627 (1925) (same); Interstate Transit, Inc. v. Lindsey, 283 U.S. 183, 51 S.Ct. 380, 75 L.Ed. 953 (1931) (striking down state tax on privilege of providing interstate bus transportation). In 1935, Congress responded by passing the Federal Motor Carrier Act of 1935, Pub. L. No. 255, § 201, 49 Stat. 543.

The Act delegated authority to the Interstate Commerce Commission to regulate many elements of interstate freight and passenger motor vehicle traffic. Most relevant for this case, the Act directed the Commission to regulate the maximum hours of service for commercial drivers. Id., § 204(a)(1). Regulating hours of service was intended to promote highway safety by reducing accidents related to driver fatigue. 79 Cong. Rec. 12209-37 (1935). This remains the goal of the hours of service regulations today. Final ELD Rule, 80 Fed. Reg. at 78,303. Jurisdiction over the regulations moved to the Federal Highway Administration in 1995 and then to the new Federal Motor Carrier Safety Administration in 2000.. See Interstate Commerce Commission Termination Act, Pub. L. 104-88, 109 Stat. 803 (1995); Owner-Operator Independent Drivers Ass’n v. Federal Motor Carrier Safety Admin., 494 F.3d 188, 193 (D.C. Cir. 2007) (discussing regulatory history).

The regulations require drivers to document four possible statuses: (1) driving; (2) on duty, not driving; (3) in the sleeper berth; and (4) off duty. 49 C.F.R. § 395.8(b). They set out maximum times for driving and require a minimum number of hours off duty each day. They also establish the maximum permissible on-duty time for each week.

Driver status has been traditionally documented through paper logs called the “Record of Duty Status.” Drivers are required to keep copies of these records for seven days before submitting them to their motor carrier. 49 C.F.R. § 395.8(k)(2). The carrier must retain copies for six months. § 395.22(i)(l). Both drivers and carriers must provide these records to authorized safety officials during roadside inspections or audits. If a driver violates the hours of service or fails to maintain her records accurately, she may be placed out of service. § 395.13.

These paper records have been ongoing sources of concern because they are easy to falsify. For example, a driver could exceed the cap on continuous driving (11 hours), but fail to record the excess hours. § 395.3(a)(3)®. There is evidence that falsification of paper records occurs on a regular basis. 65 Fed. Reg. 25,540, 25,558 (May 2, 2000) (agency noting that hours of service violations are widespread). The paper records are also vulnerable to human error. Final ELD Rule, 80 Fed. Reg. at 78,303. These concérns were part of the impetus to update the hours of service regulations.

B. Efforts to Update the Hours of Service Regulations

In 1995, Congress directed the agency to revise the hours of service regulations for commercial motor vehicles. Pub. L. 104-88 § 408, set out as note under 49 U.S.C. § 31136 (1996 Supp.). The Agency then tried to modernize the regulations. The agency’s proposed new rules have been struck down three times, twice by the Court of Appeals for the District of Columbia Circuit and once by this court.

In 2003 the agency issued a new final rule that overhauled the hours of service rules. 68 Fed. Reg. 22,456 (Apr. 28, 2003). The rule altered various requirements, including the length of the daily driving limit, the daily off-duty requirement, and the weekly on-duty maximum. See id. at 22,457, 22,501-02. The D.C. Circuit vacated the rule because the “agency failed to consider the impact of the rules on the health of drivers, a factor the agency must consider under its organic statute.” Public Citizen v. Federal Motor Carrier Safety Admin., 374 F.3d 1209, 1216 (D.C. Cir. 2004).

The agency then issued a revised final rule in 2005. 70 Fed. Reg. 49,978 (Aug. 25, 2005). The D.C. Circuit- again held that the agency erred. Owner-Operator Independent Drivers Ass’n v. Federal Motor Carrier Safety Admin., 494 F.3d 188 (D.C. Cir. 2007). This time, the agency violated the Administrative Procedure Act by failing to provide sufficient opportunity for interested parties to comment on. the method that justified the change in the hours of service rules. The agency also failed to explain sufficiently certain elements of that method. Id. at 193.

Within the agency’s broader efforts to update the hours of service rule was a narrower issue of electronic monitoring. Before promulgating the 2003 rule, the agency considered requiring electronic on-board recorders (EOBRs), which are the technical and regulatory predecessors of ELDs. See 65 Fed. Reg. 25,540, 25,598 (May 2, 2000). The agency considered requiring EOBRs in response to Congress’s 1995 directive to issue an advance notice of proposed rulemaking “dealing with a variety of fatigue-related issues pertaining to commercial motor vehicle safety ... including ... automated and tamperproof recording devices.” Pub. L. 104-88 § 408, set out- as note under 49 U.S.C. § 31136 (1996 Supp.).

While the proposed rule would have required EOBRs, the agency decided not to require them at that time. 68 Fed. Reg. 22,456, 22,488 (Apr. 28, 2003). The D.C. Circuit vacated the 2003 rule on other grounds but also admonished the agency for failing to respond adequately to the statutory directive to “deal[ ] with ... automated and tamperproof recording devices,” noting that the agency’s decision on that point was “probably flawed.” Public Citizen, 374 F.3d at 1220-22.

In response, the agency further investigated EOBRs. In 2004, the agency issued an optional advanced notice of proposed rulemaking, which indicated that it was still considering EOBR implementation. 69 Fed. Reg. 53,386 (Sept. 1, 2004).- Then, in 2007 the agency issued a formal notice of proposed rulemaking that considered three issues: (1) EOBR performance standards; (2) mandatory use of EOBRs for motor carriers that regularly violated hours of service rules; and (3) incentives to promote voluntary use of EOBRs.- 72 Fed. Reg. 2,340, 2,343 (Jan. 18, 2007). The final rule issued in 2010 required, among other things, that motor carriers “that have demonstrated serious noncompliance with the HOS [hours of service] rules will be subject to mandatory installation of EOBRs.” 75 Fed. Reg. 17,208, 17,208 (Apr. 5, 2010). This rule led to the agency’s third rebuke by the courts.

In 2011, this court vacated the final rule regarding EOBRs. Owner-Operator Independent Drivers Ass’n v. Federal Motor Carrier Safety Admin., 656 F.3d 580 (7th Cir. 2011) (“OOIDA /”), As in the D.C. Circuit’s 2003 decision, we found that the agency had failed to consider a statutory requirement: to ensure that electronic monitoring would not be used to harass drivers. 49 U.S.C. § 31137(a) (2011). Instead of building in safeguards to prevent EOBRs from being used to harass drivers, the agency had provided “a single conclu-sory sentence in the final rulemaking to the effect that the Agency ‘has taken the[ ] statutory requirement ] into accoúnt throughout the final rale.’ ” OOIDA I, 656 F.3d at 588. This shortcoming rendered the final rule arbitrary and capricious. See 5 U.S.C. § 706.

C. The Current Challenge to ELDs

In 2012, Congress stepped in again and passed the Commercial Motor Vehicle Safety Enhancement Act of 2012. This time Congress was more direct. It ordered the Secretary of Transportation to issue regulations requiring most commercial vehicles to “be equipped with an electronic logging device to improve compliance by an operator of a vehicle with hours of service regulations.” 49- Ü.S.C. § 31137(a)(1). The Act specified several factors for the Secretary to consider in implementing the ELD mandate, including the potential ■ for ; harassment, § 31137(a)(2); the potential to reduce paper documents, § 31137(d)(1); driver privacy, § 31137(d)(2); and the confidentiality of personal data, § 31137(e).

To comply with this statutory mandate, the agency issued its final rule in 2015. Final ELD Rule, 80 Fed. Reg, 78,292 (Dec. 16, 2015). The rule (1) mandates ELDs for all vehicles that are currently required to maintain hours of service records; (2) provides technical specifications for ELDs; (3) clarifies the extent to which supporting paperwork is required; and (4) adopts provisions to ensure that ELDs are not used to harass drivers. Id. at 78,293. The compliance date for the ELD mandate is set for December 18, 2017, id. at 78,292, and it will affect an estimated 3.5 million drivers.

The rule prescribes requirements for ELDs. They must automatically link to vehicle engines when the engines turn on, and they must record, the date, time, location, engine hours, vehicle miles, driver identification, vehicle identification, and motor carrier identification. 49 C.F.R. § 395.26. The collection of this data is intentionally limited in scope. Instead of continuously tracking this information, ELDs record only at specified times, such as when the vehicle is turned on, when the duty status changes, and once per hour while driving. Id, In addition, ELDs do not pinpoint a vehicle’s exact location. They provide location only within a one-mile radius. Final ELD Rule, 80 Fed. Reg. at 78,296. As with the paper records, authorized safety officials may review ELD data without a warrant at roadside inspections and during audits of motor carriers. 49 C.F.R. § 395.24(d); § 395.-22(j).

II. Analysis

We now turn to petitioners’ five arguments' for vacating the 2015 final rule: (a) ELDs will not record enough information automatically; (b) the rule fails to protect drivers sufficiently from harassment; (c) the rule’s benefits will not outweigh its costs; (d) the rule fails to protect the confidentiality of personal data collected by ELDs; and (é) the rule violates the Fourth Amendment’s prohibition against unreasonable searches and seizures.

A. “Automatically”

Petitioners first argue that ELDs must be entirely automatic to comply with Congress’s mandate. The statute directs the agency to issue regulations requiring an electronic monitoring device that “is capable of recording a driver’s. hours of service and duty status accurately and automatically.” 49 ' U.S.C. § 31137(f)(1)(A). Petitioners argue that “automatically” means entirely automatic; no human involvement is permitted. They contend .the device must be capable of automatically recording when a driver changes between the four statuses: driving; on duty, not driving; sleeper berth; and off duty. Petitioners also argue that if drivers must manually enter any information into the ELDs, this will enable falsification and defeat the purpose of the statute. For instance, the ELDs prescribed in the rule cannot automatically capture on-duty, non-driving work, such as loading a truck. If a driver must manually input this status, she could falsify the record.

It is, unclear, what devices petitioners envision, and they do not say. Such a device would need to monitor quite a few variations in human activity. If the device must function entirely automatically, how should it record a driver’s change from “off duty” to “on-duty, not driving”? According to petitioners, a driver may not clock-in manually; that would not be automatic. Or what if a driver is in the sleeper berth, but performing on-duty, non-driving work, such as reviewing a bill of lading? What type of device could tell the difference without any manual input?

Two possibilities are constant video surveillance or perhaps some form of bio-monitoring device. But naming these possibilities shows why petitioners did not mention them: they would be breathtakingly invasive. Whether we review the agency’s interpretation of “automatically” under Chevron or Skidmore, we are confident that Congress did not intend to require such invasive devices when it used the word “automatically.” See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (deferring to agency’s reasonable interpretation of ambiguous statute); Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct 161, 89 L.Ed. 124 (1944) (deferring to agency’s statutory interpretation to extent it is persuasive).

First, petitioners read the single word “automatically” in isolation, ignoring the rest of the statute. This runs contrary to the Supreme Court’s repeated instruction to “construe statutes, not isolated provisions.” King v. Burwell, 576 U.S. -, -, 135 S.Ct. 2480, 2489, 192 L.Ed.2d 483 (2015), citing Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 290, 130 S.Ct. 1396, 176 L.Ed.2d 225 (2010). We interpret statutes “as a symmetrical and coherent regulatory scheme,” Gustafson v. Alloyd Co., 513 U.S. 561, 569, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995), and “fit, if possible, all parts into an harmonious whole,” Federal Trade Comm’n v. Mandel Brothers, Inc., 359 U.S. 385, 389, 79 S.Ct. 818, 3 L.Ed.2d 893 (1959). Here, other parts of the statute provide important context for the “automatic” requirement. For instance, the statute also directs the agency to ensure that ELDs will not be used to harass drivers, 49 U.S.C. § 31137(a)(2), and to consider drivers’ privacy, § 31137(d)(2). These provisions show that Congress meant for the agency to balance competing goals. The agency understood this and balanced the competing directives in a reasonable manner.

Second, petitioners’ interpretation of “automatically” is belied by prior use of the word in precisely this context. When Congress was drafting the 2012 Act, it was aware of the EOBR rule this court vacated in 2011. See S. Rep. No. 112-238 at 4 (2012) (discussing EOBRs). The 2012 statutory mandate for ELDs in 49 U.S.C. § 31137 used the same language that described EOBRs in the previous agency rule: devices “capable of recording a driver’s hours of service and duty status accurately and automatically.” 49 C.F.R. § 395.2 (2010). If Congress had intended a very different sort of device—such as a bio-monitor—it would have given some indication. Instead, Congress used the same phrase, strongly implying that it intended a device with similar capabilities and limitations.

Third, under petitioners’ reading of the statute, Congress hid a sweeping change—all-encompassing surveillance of commercial drivers—in the interpretation of the word “automatically.” We are confident that Congress did not intend that. In construing arguably ambiguous statutory terms, it is usually prudent to assume that Congress does not “alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.” Whitman v. American Trucking Ass’ns, 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001). More colloquially, Congress does not “hide elephants in mouseholes.” Id. We do not interpret “automatically” to require constant video surveillance or bio-monitors. The ELDs prescribed by the agency function “automatically” within the meaning of § 31137.

B. Driver “Harassment”

Petitioners’ second argument takes the tack opposite from the first: the final rule should be vacated because it does not protect drivers sufficiently from harassment. As noted, we vacated the 2011 rule because the agency failed to consider the statutory mandate to “ensure that the devices are not used to harass vehicle operators.” OOIDA I, 656 F.3d at 582, citing 49 U.S.C. § 31137(a).

After our earlier decision, the agency sought input to determine how ELDs might be used to harass drivers. 76 Fed. Reg. 20,611 (Apr. 13, 2011). In 2012, the agency conducted two public listening sessions, with options for online participation. See Final ELD Rule, 80 Fed. Reg. at 78,320. It also conducted a survey of drivers and motor carriers regarding the potential for ELD-related harassment. Id. at 78,298. The agency received substantial feedback from drivers, motor carriers, and trade associations. It incorporated some of these suggestions into its final rule, including several suggestions from petitioner OOIDA. Id. at 78,321.

For purposes of this rule, the agency ultimately defínéd harassment as “an action by a motor carrier toward a driver ... involving the use of information available to the motor carrier through an ELD ... that the motor carrier knew, or should have known, would result in the driver violating § 392.3 [prohibiting driving when abilities may be impaired 'by fatigue, illness, or “any other cause”] or part 395 [hours of service rules].” 49 C.F.R. § 390.36(a). In other words, ELD-related harassment can take two forms: when a motor carrier uses an ELD to encourage a driver to drive (1) when.the driver’s ability is somehow impaired; or (2) in violation of the hours of service rules.

Petitioners contend this definition is too narrow. They argue that by linking harassment to driver impairment and hours of service, the rule protects drivers from only a “very limited subset” of possible harassment. Similar to their argument about “automatically,” petitioners claim that since the term “harassment” is unqualified in the statute, it must include every possible form of harassment.

On this issue the agency’s interpretation of “harassment” is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under Chevron’s two-part test, we first ask if, using the “traditional tools of statutory construction,” Congress has “directly spoken to the precise question at issue.” Id. at 842, 843 n.9, 104 S.Ct. 2778. If not, we proceed to Chevron’s second step and ask whether the agency’s interpretation was “based on a permissible, construction of the statute.” Id. at 843, 104 S.Ct. 2778.

Here, Congress has not “directly spoken” to the precise meaning and scope of the “harassment” mandate. As' we said in 2011, the term harassment is “undefined in the statute and thus require[s] some amplification.” OOIDA I, 656 F.3d at 588. Since Congress did not fill in the precise content, we assume that the “statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.” King v. Burwell, 576 U.S. at-, 135 S.Ct. at 2488, quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000). At Chevron’s second step, the agency’s interpretation is reasonable.

Like the statute itself, the agency linked the definition of harassment to the use of ELDs. The agency explained that it intentionally tied the definition of harassment to specific regulatory violations to provide “objective criteria” for managing harassment allegations. Final ELD Rule, 80 Fed. Reg. at 78,326. The agency claims this will help its .administrators, who are located throughout the country, address harassment complaints in a consistent and timely manner. Id,.

The agency also bolstered its harassment definition in response to specific concerns raised by drivers during the notice- and-comment process. For instance, a number of drivers expressed concern that motor carriers would' use ELDs to interrupt their sleep. Id. at 78,323, 78,326. In response, the agency required ELDs to include a mute function or volume control. 49 C.F.R. Pt. 395, Subpt. B, App. A 4.7.1(a). Drivers also expressed concern that carriers might pressure them to alter their ELD records. Final ELD Rule, 80 Fed. Reg. at 78,320, 78,323, 78,325. In response, the agency required that ELDs be made tamper-resistant, and the devices must retain a copy of their original records even if edited. Id. at 78,303. In addition, the agency adopted two specific proposals from petitioner OOIDA: it is expressly unlawful for motor carriers to use ELDs to harass drivers, and the agency established a, process for drivers to file harassment complaints. Id. at 78,321.

The rule complies with the statutory mandate to protect drivers from harassment. The agency sought input from various stakeholders, considered logistical and administrability -factors, and addressed specific concerns raised during outreach sessions. In OOIDA I, we said that the definition of- harassment needed elaboration. The agency has provided it in a reasonable way.

Moreover, petitioners have not identified an instance of harassment that the agency’s definition will leave unprotected. The one example that petitioners offer is based on a mistake. They argue that a motor carrier might pressure a driver to continue driving during dangerous weather conditions. Since this does not violate the hours of service rules, petitioners reason, it would not be considered “harassment” under the. rule’s definition. That is incorrect. This situation would fall under the other portion of the agency’s definition, which covers situations where a motor carrier pressures a driver to drive when, her ability is impaired for any reason. 49 C.F.R. § 392.3 (noting that motor carrier may not require a driver to operate a commercial vehicle “while the driver’s ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness or any other cause, as to make it unsafe for him/ her to begin or continue to operate the commercial motor vehicle”) (emphasis added). The agency’s definition of harassment thus reaches petitioners’ hypothetical. And even if some forms of potential harassment might fall outside the agency’s definition, that would not render its definition unreasonable.

C. Cost-Benefit Analysis

Petitioners next challenge the agency’s analysis of the costs and benefits of the ELD rule. They argue that the agency’s calculation of the benefits is flawed because (1) ELDs will not improve hours of service compliance because they are not entirely automatic; and (2) the studies indicating otherwise are unreliable. We also reject this challenge. The agency was not required to conduct a cost-benefit analysis for this particular rule. Even if it had been required to do so, its studies were sufficient.

Requiring ELDs was not left to the discretion of the agency; Congress mandated it. In the 2012 legislation, Congress did not instruct the Agency to consider requiring electronic monitoring, as it had in the Interstate Commerce Commission Termination Act of 1995, See Pub. L. 104-88 § 408,. set out as note under 49 U.S.C. § 31136 (1996 Supp.). In 2012, Congress simply ordered the agency to require ELDs. Section 31137(a) states that the Secretary “shall prescribe regulations ... requiring” commercial motor vehicles to be “equipped with an electronic logging device.” Congress instructed the agency to consider certain other factors such as the potential. for harassment, § 31137(a)(2); the potential to reduce paper documents, § 31137(d)(1); driver privacy, § 31137(d)(2); and the confidentiality of personal data, § 31137(e). Congress did not condition issuance of the rule on a cost-benefit analysis.

Petitioners claim that consideration of the costs and benefits of the § 31137 ELD mandate is required under § 31136. That is not correct. While § 31136 requires the agency to consider costs and benefits when promulgating minimum safety standards for commercial motor vehicles, § 31136(c)(2)(A), that requirement is expressly limited to regulations “under this section.” § 31136(c)(2). It does not apply to § 31137, which contains the ELD mandate.

Section 31136 provides additional evidence that the agency was not required to perform a cost-benefit analysis or to ensure that benefits would exceed costs when implementing the ELD mandate. Congress knows how to require rule-makers to follow cost-benefit analyses when it wants, as § 31136 shows. See, e.g., Whitman v. American Trucking Ass’ns, 531 U.S. 457, 467, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (EPA not permitted to consider costs when setting ambient air quality standards, in part because authority to consider cost had “elsewhere, and so often, been expressly granted” in Clean Air Act, but was not granted for standards in question). Even if the agency had done no cost-benefit analysis here, that would not invalidate the rule.

In any event, the agency’s studies here were sufficient to justify the rule. In the Regulatory Impact Analysis, the agency relied on two studies. The first examined five motor carriers that had implemented electronic monitoring in their fleets for at least one year. This resulted in data on 8,545 roadside inspections of 5,792 commercial motor vehicle?. Naturally, this sample size was relatively small because the ELD mandate had not yet been implemented at the national level. The agency supplemented this study with its Roadside Intervention Model.

The Roadside Intervention Model estimated the reduction in crashes that would result from a decrease in regulatory violations, To do this, the agency correlated the type. and length of driving violations to crash risk. See U.S. Dep’t Trans., Regulatory Impact Analysis §§ 2.5.4; 4.2-4,2.4 (Nov. 2015). Using data from January 2005 to September 2009, which involved 9.7 million roadside interventions, the agency estimated that the ELD mandate would result each year in 26 lives saved, 562 injuries avoided, and 1,844 crashes avoided. Id. Executive Summary at vi, Table 4. While petitioners urge us to second-guess the agency’s statistical judgment calls, we find that it exercised its expertise reasonably. See Public Citizen v. Federal Motor Carrier Safety Admin., 374 F.3d 1209, 1221 (D.C. Cir. 2004) (“The agency’s job is to exercise its expertise to make tough choices about which of the competing estimates is most plausible, and to hazard a guess as to which is correct, even if the lack of a ‘significant market for such [electronic logging] devices’ means that the estimate will be imprecise.”).

D. Confidentiality of ELD Information

Section 31137(e) requires the agency to provide safeguards to preserve the confidentiality of the data collected by ELDs. Petitioners argue that the agency has failed to do so. They claim that this situation parallels OOIDA I, where the agency simply failed to consider a factor mandated by statute (in that case, driver harassment) beyond “a single conclusory sentence in the final rulemaking.” OOIDA I, 656 F.3d at 588. Here, however, the agency provided a sufficient response by considering confidentiality in several respects.

First, as a general matter, the agency will not maintain the ELD data itself. Instead, drivers and motor carriers are responsible for maintaining and storing the information. 49 C.F.R. :§ 395.24(d); § 395.22(i)(l). The final rule also- requires motor carriers to “retain a driver’s ELD records so as to protect a driver’s privacy in a manner consistent with sound business practices.” § 395.22(i)(2).

Second, the agency noted that existing regulations “govern the 'release of private information, including requests for purposes of civil litigation.” Final ELD Rule, 80 Fed. Reg. at 78,322, citing 49 C.F.R. Pts. 7 and 9. The agency also highlighted broader federal privacy laws that will govern ELD data. Id.; see also Privacy Act, 5 U.S.C. § 552a (regulating the maintenance and use of agency records maintained on individuals). In this way, the agency showed that it considered the existing backdrop of confidentiality protections before issuing new rules.

Third, the agency said it will redact personal information before releasing confidential ELD-related data: “To protect data of a personal nature unrelated to business operations, the Agency would redact such information included as part of the administrative record before a document was made available in the public docket.” Final ELD Rule, 80 Fed. Reg. at 78,322.

The agency’s treatment of the confidentiality requirement is sufficient. It is a far cry from the prior lack of treatment of the harassment mandate in OOIDA I. While petitioners may have liked additional protections, the agency’s treatment of the confidentiality requirement was not arbitrary or capricious.

E. The Fourth Amendment

Petitioners claim that the ELD mandate is an unconstitutional “search” and “seizure.” They also argue that the rule does not fall within the Fourth Amendment’s exception for “pervasively regulated industries.” Petitioners’ arguments are unpersuasive. We need not resolve whether the ELD mandate constitutes a search or a seizure. Even if it did, it would be reasonable under the Fourth Amendment exception for pervasively regulated industries.

The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” As a general rule warrantless searches are “per se unreasonable under the Fourth Amendment—subject only to. a few specifically established and well-delineated exceptions.” Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). This protection applies to commercial property as well as to homes. Marshall v. Barlow’s, Inc., 436 U.S. 307, 312, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978).

One established exception is for administrative inspections of “pervasively regulated industries.” In these industries, reasonable expectations of privacy are diminished because an individual who “embarks upon such a business ... has voluntarily chosen to subject himself to a full arsenal of governmental regulation.” Id. at 313, 98 S.Ct. 1816. In such industries, Fourth Amendment protections do not disappear entirely. Administrative inspections must still be reasonable. See Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (“[T]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ ”),

To be eligible for the exception, administrative inspections in pervasively regulated industries must meet a three-part reasonableness test: (1) the regulatory scheme must be informed by a substantial government interest; (2) the war-rantless inspections must be necessary to further the regulatory scheme; and (3) the inspection program must provide a constitutionally adequate substitute for a warrant. New York v. Burger, 482 U.S. 691, 702-03, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). Our Fourth Amendment analysis of the ELD mandate requires two steps. First, we hold that commercial trucking is a pervasively regulated industry. We then explain why the ELD mandate is a “reasonable” administrative inspection within the meaning of the Fourth Amendment.

1. Pervasively Regulated Industries

At least six other circuits have concluded that the industry is pervasively regulated for purposes of the Fourth Amendment. See United States v. Delgado, 545 F.3d 1195, 1201-02 (9th Cir. 2008) (collecting cases). We agree.

The Supreme Court first examined the pervasively regulated industry exception in Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), and returned to it most recently in City of Los Angeles v. Patel, 576 U.S. -, -, 135 S.Ct. 2443, 2454-57, 192 L.Ed.2d 435 (2015). The Court has recognized four industries that fall within this exception: the sale of liquor, Colonnade Catering Corp., 397 U.S. at 72, 90 S.Ct. 774; dealing in firearms, United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972); mining, Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981); and automobile junkyards, New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). The Court has also held that two industries are not pervasively regulated. Barlow’s, Inc., 436 U.S. at 313-14, 98 S.Ct. 1816 (rejecting argument that “all businesses involved in interstate commerce” are pervasively regulated); Patel, 576 U.S. at -, 135 S.Ct. at 2454-56 (hotels are not pervasively regulated).

The Court has relied on three primary factors to determine if a particular industry is pervasively regulated: (1) the history of regulation in that industry; (2) the comprehensiveness of the regulations; and most recently (3) any inherent danger in the industry. We consider these factors in turn.

“History is relevant when determining whether an industry is closely regulated.” Patel, 576 U.S. at -, 135 S.Ct. at 2455; see also Barlow’s, Inc., 436 U.S. at 313, 98 S.Ct. 1816 (firearms industry had “such a history of government oversight that no reasonable expectation of privacy ... could exist”). Regulation of commercial trucking has deep historical roots, See supra, Part I-A. The federal government has regulated the industry since 1935, and individual states imposed regulations even earlier.

In addition to the history of. general regulation, hours of service rules have been in place since 1935. As the Supreme Court noted in Patel, a history of regulation that is unrelated to the administrative inspection would carry less force. See Patel, 576 U.S. at —, 135 S.Ct. at 2455 (noting that historical regulations requiring inns to provide accommodations to all paying guests were unrelated to contemporary question of warrantless inspections of hotel guest registries). Commercial trucking has a long history of not only general regulation, but also rules governing the length of time drivers may stay on the road. See Federal Motor Carrier Act of 1935, Pub. L. No. 255, § 201, 49 Stat. 543. The ELD mandate updates those rule to capture essentially the same information while reducing opportunities for falsification or human error. This factor weighs in favor of treating commercial trucking as pervasively regulated.

The Supreme Court also considers the comprehensiveness of regulation in an industry. See, e.g., Burger, 482 U.S. at 705 n.16, 107 S.Ct. 2636 (“[T]he proper focus is on whether the ‘regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.’”), quoting Dewey, 452 U.S. at 600, 101 S.Ct. 2534. The comprehensiveness of trucking regulation also helps to establish that industry participants have a diminished expectation of privacy.

The commercial trucking industry is regulated extensively. - Federal regulations govern a host of issues ranging from driver qualifications, procedures for driver disqualification, inspection of vehicles, vehicle parts, reporting accidents, and repair and maintenance, to transportation of hazardous materials, minimum levels of financial responsibility for motor carriers, and more. See 49 C.F.R. §§ 100-399. States also impose significant regulations on commercial motor vehicles. See, e.g., 92 Ill. Adm. Code § 340-97; 140 Ind. Admin. Code § 7-3; Wis. Adm. Code Trans. § 177. This factor also weighs in favor of considering the commercial trucking industry to be pervasively regulated.

Finally, the Supreme Court signaled in Patel that courts should consider whether the industry is inherently dangerous. See Patel, 576 U.S. at-, 135 S.Ct. at 2454 (distinguishing hotels from pervasively regulated industries because “nothing inherent in the operation of hotels poses a clear and significant risk to the public welfare”). This factor also supports treating commercial trucking as pervasively regulated.

Congress has long recognized commercial trucking as a dangerous industry. Danger to the public has lain at the center of the hours of service rules since 1935. See, e.g., 79 Cong. Rec. 12,212 (1935) (statement of Rep. Monaghan) (coining term “truckathon” to describe the “brutal, inhumane, and dangerous practice whereby drivers of busses and trucks are compelled to work 18 to 20 hours a day, to the detriment of their own health and the danger of the public who travel the highways of our country”).

Such dangers led us to reject a Fourth Amendment challenge to random drug tests for drivers of city-owned trucks in Krieg v. Seybold, 481 F.3d 512 (7th Cir. 2007). We determined that operating “large vehicles and equipment” was a “safety-sensitive job,” id, at 518, noting that the job was “fraught with such risks of injury to others that even a momentary lapse of attention [could] have disastrous consequences.” Id., quoting Skinner v. Railway Labor Executives’ Ass'n, 489 U.S. 602, 628, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). The agency’s estimate regarding the public safety benefits of ELDs indicates the dangerousness of the industry: ELDs are estimated to save 26 lives, prevent 562 injuries, and avoid 1,844 vehicles crashes per year. U.S. Dep’t Trans., Regulatory Impact Analysis, Executive Summary at vi, Table 4 (Nov. 2015). All of these factors thus weigh in favor of treating commercial trucking as a dangerous industry. For purposes of the Fourth Amendment, commercial trucking is a pervasively regulated industry.

2. Reasonableness of the ELD Mandate

The ELD mandate must still pass a three-part reasonableness test: (1) the regulatory scheme must be informed by a substantial government' interest; (2) the warrantless inspections must be necessary to further the regulatory scheme; and (3) the inspection program must provide a constitutionally adequate substitute for a warrant.

We have already addressed the first element. The public safety concerns inherent in commercial trucking give the government a substantial interest.

The ELD mandate also meets the second element. ELD records and administrative inspection of them are necessary to further the government’s regulatory scheme. As noted above, falsification and errors in the traditional paper records are a widespread problem. See supra, Part IA; 65 Fed. Reg. 25,540, 25,558 (May 2, 2000). During the agency’s listening sessions, drivers said that motor .carriers sometimes pressure them to alter their paper records. Final ELD Rule, 80 Fed. Reg. at 78,320, 78,323, 78,325. Automatic recording and warrantless inspection of those records offer a reasonable method to combat this problem. ELDs should not only help discover hours of service violations but also deter such violations.

Warrantless inspection of hours of service records at roadside inspections and during audits is not. new. Such reviews of the paper records have long been central to enforcement of the hours of service. .See 49 C.F.R. § 395.8(k)(2) (2014). Since the search occurs when law enforcement reviews the hours of service data—not during the driver’s collection and storage of the data—ELDs do not create a search regimen substantially different from what has occurred with the paper records for generations of drivers. Making the records more reliable does not affect the reasonableness of the resulting searches. It is also a reasonable way to achieve the regulatory goals.

The ELD mandate meets the third element because the agency provides a constitutionally adequate substitute for a warrant. To meet this third requirement, the inspection must (1) advise the owner- of the commercial property that the search is made pursuant to the law and has a properly defined scope, and (2) must limit the discretion of the inspecting officers. Burger, 482 U.S. at 703, 107 S.Ct. 2636. The ELD mandate does both.

First, 49 C.F.R. § 395.24(d). .and § 395.22(j) advise drivers and motor carriers that authorized' safety officials may search ELD data pursuant to law. The rules also limit the scope of the inspections to ELD records. Id.; see also Final ELD Rule, 80 Fed. Reg. at 78,296-97. In addition, the data recorded by ELDs are intentionally limited, restricting the scope of the information available to law enforcement. Id. at 78,322-23.

Next, the discretion of inspecting officers is limited in two important ways. First, the ELD mandate authorizes officers to inspect only ELD data; it does not provide discretion to search a vehicle more broadly. Second, § 31137(e)(3) requires the agency to take steps to ensure that law enforcement uses ELDs only to enforce compliance with the hours of service rules. The agency acknowledged this during rule-making, Final ELD Rule, 80 Fed. Reg. at 78,322, and the agency issued a memorandum limiting the use of ELD records to enforcement of the hours of service requirements. Memorandum from William A. Quade, Assoc. Adm’r for Enforcement, Federal Motor Carrier Admin. (Dec. 4, 2015). Taken together, these protections create a constitutionally adequate substitute for a warrant in the commercial trucking industry. Because the agency’s promulgation of the ELD mandate passes the three-part test of Burger, it is reasonable within the meaning of the Fourth Amendment.

Accordingly, the Federal Motor Carrier Safety Administration’s final ELD rule codified at 49 C.F.R. Pts. 385, 386, 390, and 395 is not arbitrary or capricious, nor does it violate the Fourth Amendment. The petition for review is DENIED.

      . This statute was first directed to the Federal Highway Administration in 1995, but that agency never took any action. The responsibility then fell to the Federal Motor Carrier Safety Administration.

      . By way of illustration, NASA has experimented with devices to monitor astronauts’ sleep patterns. See, e.g., NASA, Wearable System for Sleep Monitoring in Microgravity (Wearable Monitoring), July 14, 2016, http:// www.nasa.gov/missiorupages/station/ research/experments/1279.html.

      . Even if petitioners were correct that the agency, needed to conduct a cost-benefit analysis and that the agency’s studies were inadequate, the benefits of ELDs would still outweigh the costs. Petitioners do not challenge the accuracy of the agency’s estimate of total paperwork savings from the ELD mandate, nor do they challenge the agency's estimate of total costs of the mandate. Even apart from the benefits of accidents prevented, the estimated paperwork savings alone outweigh the costs of the ELD mandate. See U.S. Dep't Trans., Regulatory Impact Analysis, Executive Summary at v (Nov. 2015).

      . We take judicial notice of the memorandum under Fed. R. Evid. 201. See Fornalik v. Perryman, 223 F.3d 523, 529 (7th Cir. 2000); United States v. Eagleboy, 200 F.3d 1137, 1140 (8th Cir. 1999). Petitioners had an opportunity to file supplemental briefing regarding this document. The memorandum did not need to be issued by notice-and-comment rulemaking. While the statute elsewhere requires the Secretary to proceed by regulation, see 49 U.S.C. § 31137(a), the provision in question here requires only that the Secretary “institute appropriate measures.” § 31337(e)(3). The memorandum meets that requirement.