United States District Court, District of Columbia
AIR TRANSPORT ASSOCIATION OF AMERICA, INC. d/b/a AIRLINES FOR AMERICA, et al., Plaintiffs,
UNITED STATES DERPARTMENT OF AGRICULTURE, et al., Defendants.
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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.
now move under Rule 54(b) to amend the Court's order to:
(1) Remand with vacatur the reserve portion of the Final
(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
See Pls.' Mot. to Amend Order (Mot.) [Dkt. 38]
at 1. The motion is ripe for decision.
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