649 F.3d 734 (D.C. Cir. 2011), 10-5213, American Bus Ass'n v. Rogoff

Docket Nº:10-5213, 10-5214.
Citation:649 F.3d 734
Opinion Judge:GARLAND, Circuit Judge:
Party Name:AMERICAN BUS ASSOCIATION, Appellee v. Peter M. ROGOFF, Administrator, Federal Transit Administration and Federal Transit Administration, Appellants.
Attorney:Lewis Yelin, Attorney, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Tony West, Assistant Attorney General, and Scott R. McIntosh, Attorney; Ronald C. Machen, U.S. Attorney; and R. Craig Lawrence, Diane M. Sullivan, and Lauren J. Karam, Assistant U.S. At...
Judge Panel:Before: GARLAND and KAVANAUGH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Case Date:June 14, 2011
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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649 F.3d 734 (D.C. Cir. 2011)



Peter M. ROGOFF, Administrator, Federal Transit Administration and Federal Transit Administration, Appellants.

Nos. 10-5213, 10-5214.

United States Court of Appeals, District of Columbia Circuit.

June 14, 2011

Argued Sept. 23, 2010.

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Appeals from the United States District Court for the District of Columbia (No. 1:10-cv-00686).

Lewis Yelin, Attorney, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Tony West, Assistant Attorney General, and Scott R. McIntosh, Attorney; Ronald C. Machen, U.S. Attorney; and R. Craig Lawrence, Diane M. Sullivan, and Lauren J. Karam, Assistant U.S. Attorneys.

Richard P. Schweitzer argued the cause for appellee American Bus Association. With him on the briefs was Craig M. Cibak.

Dan R. Mastromarco argued the cause for appellee United Motorcoach Association, Inc. With him on the brief was David R. Burton.

Before: GARLAND and KAVANAUGH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.


GARLAND, Circuit Judge:

This appeal raises the following question: Can Congress constitutionally permit a federally-subsidized transit system to take the residents of Seattle out to the ball game? We conclude that Congress can, and we therefore reject the plaintiffs' challenge to a Washington Senator's effort to help her constituents get to Seattle Mariners games.


The Federal Transit Act provides that, as a condition of receiving federal funding, a public transportation system must agree not to " provide charter bus transportation service outside the urban area in which [the system] provides regularly scheduled public transportation service." 49 U.S.C. § 5323(d)(1). This provision is known as the " Charter Rule." The Act further provides that, " [o]n receiving a complaint about a violation of [such an agreement], the Secretary [of Transportation] shall investigate and decide whether a violation has occurred." Id. § 5323(d)(2)(A). " If the Secretary decides that a violation has occurred, the Secretary shall correct the violation under terms of the agreement." Id. § 5323(d)(2)(B).

The Transit Act authorizes the Secretary of Transportation to issue implementing regulations, id. § 5334(a)(11), which authority the Secretary has delegated to the Federal Transit Administration (FTA),

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49 C.F.R. § 1.51(g). The FTA, in turn, has promulgated regulations that allow interested parties to request advisory opinions regarding the Charter Rule, as well as orders to cease and desist from violations of that Rule. Id. § 604.17. The regulations also permit interested parties to file complaints " regarding the provision of charter service by a recipient" of federal financial assistance. Id. §§ 604.25, .27. The FTA may then conduct an investigation, and if it determines that a violation of the Charter Rule has occurred, it may (inter alia) bar the offending transit system from receiving future federal funding. Id. § 604.47(a)(1). A party dissatisfied with the FTA's determination may file a petition for judicial review under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-06. See 49 C.F.R. § 604.50(a).

Although the Transit Act's Charter Rule dates to 1973, Seattle's public transportation system, King County Metro (KCM), began providing special local bus service to Seattle Mariners baseball games in the late 1990s and continued this service for more than a decade. In 2008, the FTA issued a regulation clarifying that the " charter service" barred by the Transit Act includes irregularly scheduled bus service to special events, including baseball games. 49 C.F.R. § 604.3(c)(2); see 73 Fed.Reg. 44,933 (2008). Because KCM's special buses qualified as " charter service" under the regulation, KCM could no longer provide the buses without jeopardizing its federal funding. 1 In March 2008, KCM successfully petitioned the FTA for an exception to the Charter Rule for the 2008 baseball season. United Motor Coach Association (UMA) filed suit challenging the exception, but that suit was mooted when the 2008 season ended and the exception expired. United Motorcoach Ass'n v. Welbes, 614 F.Supp.2d 1, 8-10 (D.D.C.2009).

During the 2009 season, there was no charter bus service to Mariners games: KCM did not get another exception, and no private bus company was able to reach an agreement with the Mariners. To avoid a similar situation for the following season, Senator Patty Murray of Washington State sponsored an amendment to the Consolidated Appropriations Act of 2010. The Murray Amendment states:

None of the funds provided or limited under this Act may be used to enforce regulations related to charter bus service under part 604 of title 49, Code of Federal Regulations, for any transit agency who during fiscal year 2008 was both initially granted a 60-day period to come into compliance with part 604, and then was subsequently granted an exception from said part.

Pub.L. No. 111-117, § 172 (2009). The only public transit agency that meets this definition is KCM. Thus, the Amendment ensured that the FTA could not spend appropriated funds to enforce the Charter Rule to bar KCM from providing bus service to Mariners games in Fiscal Year (FY) 2010. Moreover, although the Murray Amendment originally applied only to FY 2010 funds, Congress has since enacted a series of continuing appropriations acts that effectively retain the Murray Amendment's limitation through the end of FY

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2011.2 In April 2010, KCM resumed operating its charter bus service for weekend Mariners home games between the team's stadium and four park-and-ride locations.

In May 2010, two national trade associations representing the private charter bus industry— UMA and the American Bus Association (ABA)— filed complaints in district court charging that the Murray Amendment violates the constitutional rights of their members. They alleged that, by singling out private charter bus operators in King County as the only such operators that cannot enforce the Charter Rule against a competitor (KCM), the Murray Amendment violates those operators' First Amendment right to petition and Fifth Amendment right to equal protection. They also charged that the Murray Amendment violates their members' right to procedural due process under the Fifth Amendment and is inconsistent with separation of powers principles. After a hearing on the merits, the district court held the Murray Amendment unconstitutional on Petition Clause and equal protection grounds and ordered the FTA to enforce the Charter Rule with respect to KCM. Am. Bus Ass'n v. Rogoff, 717 F.Supp.2d 73, 92 (D.D.C.2010). The court did not reach the due process or separation of powers claims.

The FTA appealed, and a special panel of this court stayed the district court's decision pending appeal. See Order at 1, Am. Bus Ass'n v. Rogoff, No. 10-5213 (D.C.Cir. July 13, 2010). Because a constitutional challenge to a statute " presents a pure question of law," we consider the plaintiffs' claims de novo. Eldred v. Reno, 239 F.3d 372, 374 (D.C.Cir.2001).3


The plaintiffs contend that the Murray Amendment violates their Fifth Amendment right to equal protection 4 by keeping " only those private charter operators in the Seattle, Washington geographic region from enjoying the protections afforded by the Charter Rule." ABA Compl. ¶ 71; see UMA Compl. ¶ 80. Ordinarily, such economic regulation would be reviewed only for minimum rationality. FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993); see

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infra Part III. Although stricter scrutiny is required for classifications that " proceed[ ] along suspect lines [ ]or infringe fundamental constitutional rights," Beach Commc'ns, 508 U.S. at 313, 113 S.Ct. 2096, those exceptions do not apply here. Private bus companies do not represent a suspect class, and their interest in providing service to baseball games without competition from subsidized public buses is not a fundamental interest.

Nonetheless, the plaintiffs contend and the district court found that heightened scrutiny is required because the plaintiffs allege an equal protection violation intertwined with a violation of their First Amendment right to petition. In News America Publishing, Inc. v. FCC, we concluded that legislation that " burden[ed] a single publisher/broadcaster" had to be scrutinized " under a test more stringent than the ‘ minimum rationality’ criterion typically used for conventional economic legislation under equal protection analysis." 844 F.2d 800, 802 (D.C.Cir.1988). Applying that precedent, the district court first determined that the Murray Amendment burdens the plaintiffs' Petition Clause rights, and then applied a more stringent form of equal protection scrutiny— which it found the Murray Amendment could not withstand.

At issue in News America was a statutory provision that specifically barred the FCC from granting one— and only one— publisher the extension of a waiver it needed to acquire television broadcast licenses. 844 F.2d at 802-03. The challenged provision thus prevented that publisher from broadcasting on those stations, directly burdening its freedom of speech. In this case, the plaintiffs contend that the Murray Amendment directly burdens their right to petition the government. We disagree.

The First Amendment's Petition Clause provides that " Congress shall make no law ... abridging ... the right of the people ... to petition the Government for a redress of grievances." U.S. CONST. amend. I. " The right to petition is cut from the same cloth as the other guarantees of [the First] Amendment, and is an assurance of a particular freedom of expression." McDonald v. Smith, 472 U.S. 479, 482, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985). The right " extends to [petitioning] all departments of the Government," including administrative agencies...

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