United States District Court, District of Columbia
D. BATES UNITED STATES DISTRICT JUDGE.
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.
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
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.
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.
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.
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.
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.
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”). 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.
the Department's case seems straightforward. The
Extension Rule restates the authority citation for 14 C.F.R.
part 234,  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.
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. 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.
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