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Air Transport Association of America, Inc. v. United States Derpartment of Agriculture

United States District Court, District of Columbia

July 17, 2018

AIR TRANSPORT ASSOCIATION OF AMERICA, INC. d/b/a AIRLINES FOR AMERICA, et al., Plaintiffs,
v.
UNITED STATES DERPARTMENT OF AGRICULTURE, et al., Defendants.

          MEMORANDUM OPINION

          ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE

         The Air Transport Association of America, Inc. and the International Air Transport Association challenged a Final Rule issued by the Animal and Plant Health Inspection Service (APHIS) within the United States Department of Agriculture. The Final Rule set fees for checking international aircraft for unwanted pests, including an additional amount for a “reserve.” The Court agreed that the adoption of the Final Rule as to the reserve was problematic and remanded that portion of the Final Rule to APHIS for further rulemaking. Now the Plaintiffs move to reconsider the Court's order, particularly the remand of the reserve portion of the Final Rule without vacatur. They also ask the Court to impose a schedule for further rulemaking by the agency and ask that the Court certify part of its opinion for interlocutory review. Specifically, Plaintiffs ask the Court to certify for immediate review the question of whether APHIS violated the Administrative Procedure Act when it determined to apply the fee for commercial aircraft to passenger aircraft without explaining inconsistencies in the rulemaking record.

         The Court finds that: (1) the reserve portion of the Final Rule is properly remanded without vacatur; (2) a deadline and schedule for periodic status reports shall be imposed; and (3) certification for interlocutory appeal is not warranted. Thus, the Court will grant in part and deny in part Plaintiffs' motion to amend the March 28, 2018 Order.

         I. BACKGROUND

         The facts were discussed in detail in the Court's March 28, 2018 Opinion in this case, and will only be repeated to the extent that they are relevant to the pending motion. See Air Transp. Ass'n of Am., Inc. v. USDA, 303 F.Supp.3d 28, 33-38 (D.D.C. 2018). In short, Congress granted APHIS the authority to inspect “persons and vessels entering the customs territory of the United States for possible infection or infestation with pests and diseases that threaten the resident flora and fauna.” Air Transp. Ass'n, 303 F.Supp.3d at 33; see also Plant Protection Act, 7 U.S.C. § 7701, et seq. (2010); 7 C.F.R. § 330.105. Congress enacted the Food, Agriculture, Conservation, and Trade Act (FACT Act) in 1990, “authoriz[ing] APHIS to collect user fees for certain agricultural quarantine and inspection (AQI) services.” Air Transp. Ass'n, 303 F.Supp.3d at 34. When the FACT Act was amended as part of the Federal Agricultural Improvement Act of 1996, Congress revised the section describing the authorized fees and created a temporary Agricultural Quarantine Inspection User Fee Account in the Department of Treasury. See Pub. L. No. 104-127, § 917, 110 Stat. 888, 1187-88 (1996) (codified at 21 U.S.C. § 136a (2013)). Under § 136a(a)(1)(C), the Secretary of Agriculture was authorized to assess fees to “maintain a reasonable balance in the Agricultural Quarantine Inspection User Fee Account” for FY96 through FY02. 21 U.S.C. § 136a(a)(1)(C). APHIS has explained that “[t]he reserve fund ensures that AQI program operations continue without interruption when service volumes fluctuate due to economic conditions or other circumstances.” Air Transp. Ass'n, 303 F.Supp.3d at 35.

         On April 25, 2014, APHIS submitted a proposed new rule for notice and comment as part of an ongoing attempt to adjust fees to cover the costs of the AQI program. See Id. at 37. The October 29, 2015 Final Rule decreased the air passenger fee to $3.96 and increased the commercial aircraft fee to $225. See id. Plaintiffs objected to the Final Rule and filed their Complaint on May 14, 2016, alleging four Administrative Procedure Act (APA), 5 U.S.C. § 500, et seq. (2012), violations. See 5 U.S.C. § 706(2)(A); Air Transp. Ass'n, 303 F.Supp.3d at 37-38.

         The Court denied Plaintiffs' motion for summary judgment as to Counts I, II, and IV, see Air Transp. Ass'n, 303 F.Supp.3d at 57; and granted Plaintiffs' motion as to Count III, agreeing that APHIS violated the FACT Act by maintaining a reserve fund after the expiration of its statutory authority in 2002 under § 136a(a)(1)(C). See Id. at 51-52. The Court concluded that “[w]hether there is authority to be found elsewhere, reliance on expired statutory language was unreasonable and therefore arbitrary and capricious, ” and remanded to the agency for “further consideration and possible rulemaking by APHIS.” Id. at 52.

         Plaintiffs now move under Rule 54(b) to amend the Court's order to:

(1) Remand with vacatur the reserve portion of the Final Rule;
(2) Require APHIS to respond to the Court's remand Order by publishing a new or amended rule for public notice and comment, or by taking other action, by August 31, 2018, and to require status reports from the parties every 90 days during the course of the remand period; and
(3) Certify for interlocutory appeal under 28 U.S.C. § 1292(b) whether APHIS's application of the commercial aircraft fee to passenger aircraft satisfies the requirements of the APA given the inconsistencies in the agency's expert report from Grant Thornton and the Final Rule and APHIS's failure to explain these discrepancies in the rulemaking.

See Pls.' Mot. to Amend Order (Mot.) [Dkt. 38] at 1. The motion is ripe for decision.[1]

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 54(b) governs a court's reconsideration of non-final, or interlocutory, orders. See Murphy v. Exec. Office for U.S. Att'ys, 11 F.Supp.3d 7, 8 (D.D.C. 2014), aff'd, 789 F.3d 204 (D.C. Cir. 2015). An order granting a motion for summary judgment in part is an interlocutory order. Cuban v. SEC, 795 F.Supp.2d 43, 48 (D.D.C. 2011) (“Court action that terminates fewer than all claims in a case is considered interlocutory.”) (citing Langevine v. District of Columbia, 106 F.3d 1018, 1023 (D.C. Cir. 1997)). Rule 54(b) provides that an interlocutory order ...


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