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Paralyzed Veterans of America v. U.S. Department of Transportation

United States District Court, District of Columbia

December 21, 2017

PARALYZED VETERANS OF AMERICA, et al., Plaintiffs,
v.
U.S. DEPARTMENT OF TRANSPORTATION, et al., Defendants.

          MEMORANDUM OPINION

          JOHN D. BATES UNITED STATES DISTRICT JUDGE.

         In 2016, the Department of Transportation issued a final rule (the “Reporting Rule”) that will require airlines to report the number of wheelchairs and scooters that are mishandled after being transported as checked luggage on passenger flights. Although the Reporting Rule was initially scheduled to take effect on January 1, 2018, the Department later issued another final rule (the “Extension Rule”) that delayed the Reporting Rule's effective date by one year. Several months later, plaintiffs filed this action challenging the Extension Rule, arguing that it is arbitrary and capricious and that it should have been issued using notice-and-comment procedures.

         Before the Court, the Department defends neither the substance of the Extension Rule nor the procedures that were used to promulgate it. Instead, the Department argues only that the Court lacks jurisdiction over plaintiffs' challenge, because a statute vests that jurisdiction exclusively in the federal courts of appeals. Indeed, the Department agrees that summary judgment should be entered for plaintiffs if there is jurisdiction here. But while plaintiffs' arguments against the Extension Rule may have merit, the Court's first consideration-and here, its only one-is jurisdiction. For the reasons that follow, the Court agrees with the Department that it lacks subject-matter jurisdiction over this case.

         I. Background

         In 2011, the Department of Transportation (the “Department”) proposed a new rule that would require airlines to report the number of wheelchairs and scooters that are delayed, damaged, or lost after being transported as checked luggage on domestic passenger flights. See Reporting Ancillary Airline Passenger Revenues, 76 Fed. Reg. 41, 726 (July 15, 2011). In its notice of proposed rulemaking, the Department noted that “[m]any air travelers who use wheelchairs are reluctant to travel by air because of concern that the return of their wheelchairs or scooters will be delayed, or the wheelchair/scooter will be damaged or lost.” Id. at 41, 728. The proposed rule, the Department explained, would enable a traveler to select an airline based on its track record of handling mobility devices and would encourage airlines to handle such devices with greater care.

         After receiving hundreds of comments from airlines, industry groups, disability-rights organizations, and other members of the public, the Department issued the final Reporting Rule in November 2016. The rule will require air carriers to “report monthly to the Department . . . [t]he total number of wheelchairs and scooters that were enplaned in the aircraft cargo compartment for any domestic nonstop scheduled passenger flight, ” as well as the number of such bags that were “mishandled.” 14 C.F.R. § 234.6(b)(2)-(3); see also 14 C.F.R. § 234.2 (defining a “[m]ishandled checked bag” as one that was “lost, delayed, damaged or pilfered”). Though the Reporting Rule took effect on December 2, 2016, it initially applied only to flights taking place on or after January 1, 2018. See Reporting of Data for Mishandled Baggage and Wheelchairs and Scooters Transported in Aircraft Cargo Compartments, 81 Fed. Reg. 76, 300, 76, 306 (Nov. 2, 2016) [hereinafter “Reporting Rule”]. This deadline was in response to comments from airlines that it would take “12 to 24 months” to come into compliance with the rule because of the need to “reprogram[] existing systems, install[] new equipment, and train[] employees.” Id. at 76, 305.

         A few months later, without following the notice-and-comment procedures provided for in the Administrative Procedure Act (“APA”), see 5 U.S.C. § 553, the Department issued another final rule that extended the Reporting Rule's compliance deadline to January 1, 2019. See Reporting of Data for Mishandled Baggage and Wheelchairs and Scooters; Extension of Compliance Date, 82 Fed. Reg. 14, 437 (Mar. 21, 2017) [hereinafter “Extension Rule”] (codified at 14 C.F.R. part 234). The Extension Rule pointed to requests from Airlines for America (“A4A”), an industry group, and Delta Air Lines, Inc., both of which cited a January 20, 2017 memorandum circulated to executive agencies by then-White House Chief of Staff Reince Priebus, which instructed agencies to “temporarily postpone the effective dates of regulations that had been published in the Federal Register, but were not yet effective, until 60 days after the date of the memorandum.” Id. at 14, 437. A4A's request also stated that “industry is facing challenges with parts of this regulation and needs more time to implement it.” Id.

         In July 2017, over four months after the Extension Rule was issued, Paralyzed Veterans of America (“PVA”), a nonprofit organization, and Larry Dodson, a member of PVA, filed this lawsuit against the Department and the Secretary of Transportation in her official capacity (collectively, the “Department”) seeking an injunction against the Extension Rule, so that the Reporting Rule would take effect on January 1, 2018 as originally scheduled. See Compl. [ECF No. 1] at 15. Dodson and PVA (collectively, “plaintiffs”) have moved for a stay of the Extension Rule pending the resolution of this litigation, see Pls.' Mot. for a Stay Pursuant to 5 U.S.C. § 705 (“Pls.' Stay Mot.”) [ECF No. 2], and for summary judgment, see Pls.' Mot. for Summ. J. [ECF No. 14]. They contend that the Extension Rule is procedurally invalid because it was promulgated without notice and comment, see Pls.' Combined Mem. in Supp. of Pls.' Mot. for Summ. J., Reply to the Mot. to Stay Pursuant to 5 U.S.C. § 705, and Opp'n to Defs.' Mot. to Dismiss for Lack of Jurisdiction (“Pls.' Combined Mem.”) [ECF Nos. 14-1, 16, 17] at 21-26, and substantively invalid because it is arbitrary and capricious, see id. at 26-28 (citing 5 U.S.C. § 706). The Department has elected not to address these arguments, see Reply in Support of Defs.' Mot. to Dismiss [ECF No. 18] at 1 n.1, and instead argues only that the Court lacks subject-matter jurisdiction over plaintiffs' suit. See Defs.' Mot. to Dismiss [ECF No. 10]; see also Defs.' Combined Mem. in Support of Defs.' Mot. to Dismiss and in Opp'n to Pls.' Mot. for Stay (“Defs.' Combined Mem.”) [ECF Nos. 10-1, 11] at 1 n.1.

         For the reasons given below, the Court agrees with the Department that it lacks jurisdiction. It will therefore transfer this case “in the interests of justice” to the U.S. Court of Appeals for the District of Columbia Circuit under 28 U.S.C. § 1631 and deny without prejudice the Department's motion to dismiss and the plaintiffs' motions for a stay and for summary judgment.[1]

         II. Discussion

         Under 49 U.S.C. § 46110, the federal courts of appeals have exclusive subject-matter jurisdiction over any challenge to a rule issued by the Secretary of Transportation in whole or in part under part A of subtitle VII of title 49 of the U.S. Code (“Part A”).[2] Such review must be sought in an appropriate court of appeals “not later than 60 days” after the challenged rule is issued. Id. § 46110(a). The Department contends that § 46110 strips this Court of jurisdiction over plaintiffs' challenge to the Extension Rule.

         Initially, the Department's case seems straightforward. The Extension Rule restates the authority citation for 14 C.F.R. part 234, [3] which cites three statutory provisions: 49 U.S.C. §§ 329, 41101, and 41701. See Extension Rule, 82 Fed. Reg. at 14, 437. The latter two provisions, §§ 41101 and 41701, both appear in Part A. Thus, the Extension Rule was issued “in part” under Part A, and jurisdiction to review the rule lies in the courts of appeals.

         But as plaintiffs point out, neither § 41101 nor § 41701 even arguably supports the Extension Rule. Section 41101, entitled “Requirement for a certificate, ” requires that an air carrier obtain a certificate from the Department before providing air transportation services to the public. And § 41701, entitled “Classification of air carriers, ” authorizes the Department to establish “reasonable classifications for air carriers.” See Pls.' Combined Mem. at 15. Any connection between these two provisions and the Extension Rule is tenuous at best.[4] Moreover, although § 329 at least colorably supports the Extension Rule, see, e.g., 49 U.S.C. § 329(a) (authorizing the Department to “collect and collate transportation information [it] decides will contribute to the improvement of the transportation system of the United States”), § 329 does not appear in Part A. Thus, plaintiffs argue, the Extension Rule was not “issued under” Part A.

         The Department's responses are twofold. First, the Department points to a sentence in the Extension Rule which states that the rule was issued by the Department's Deputy General Counsel “under authority delegated in 49 CFR 1.27(n).” Extension Rule, 82 Fed. Reg. at 14, 437. Section 1.27(n) provides: “The General Counsel is delegated authority to . . . conduct all departmental regulation of airline consumer protection . . . pursuant to chapters 401 . . ., 411 . . ., 413 . . ., 417 . . ., and 423” of title 49-five chapters that all appear in Part A. Thus, the Department reasons, because the General Counsel issued the Extension Rule under the authority delegated in ...


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