752 F.2d 694 (D.C. Cir. 1985), 83-1055, Paralyzed Veterans of America v. C.A.B.

Docket Nº:83-1055.
Citation:752 F.2d 694
Party Name:PARALYZED VETERANS OF AMERICA, American Coalition of Citizens with Disabilities, American Council of the Blind, Petitioners, v. CIVIL AERONAUTICS BOARD, Federal Aviation Administration, United States Department of Transportation, Respondents, Regional Airline Association, Intervenor.
Case Date:January 18, 1985
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 694

752 F.2d 694 (D.C. Cir. 1985)

PARALYZED VETERANS OF AMERICA, American Coalition of

Citizens with Disabilities, American Council of

the Blind, Petitioners,

v.

CIVIL AERONAUTICS BOARD, Federal Aviation Administration,

United States Department of Transportation, Respondents,

Regional Airline Association, Intervenor.

No. 83-1055.

United States Court of Appeals, District of Columbia Circuit

January 18, 1985

Argued Oct. 31, 1983.

Opinion on Denial of Rehearing and Rehearing En Banc April 26, 1985.

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Douglas L. Parker, Washington, D.C., with whom Karen Peltz Strauss and Arlene J. Battis, Washington, D.C., were on the brief, for petitioners.

David Schaffer, Atty., C.A.B., Washington, D.C., with whom William Bradford Reynolds, Asst. Atty. Gen., Dept. of Justice, Ivars V. Mellups, Acting Gen. Counsel and Thomas L. Ray, Asst. Gen. Counsel, C.A.B., Washington, D.C., were on brief, for respondents. Robert B. Nicholson and Margaret G. Halpern, Attys., Dept. of Justice, Washington, D.C., also entered appearances for respondents.

Calvin Davison, Washington, D.C., for intervenor. David H. Solomon, Washington, D.C., also entered an appearance for intervenor.

Before WALD and MIKVA, Circuit Judges, and BAZELON, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge BAZELON.

BAZELON, Senior Circuit Judge:

Petitioners Paralyzed Veterans of America (PVA) and other organizations representing disabled citizens 1 challenge final regulations of the Civil Aeronautics Board (CAB or Board) implementing section 504 of the Rehabilitation Act of 1973 (the Act) with respect to commercial airlines. 2 The

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regulations were designed to prevent discrimination against handicapped persons in air transportation. The most important issue presented by this case concerns the scope of the CAB's Amended Final Rule, which the Board has applied only to certain small airlines receiving direct federal subsidies. Petitioners maintain that the Board is required by law to apply its regulations to all commercial air carriers. We agree. As to the substance of those regulations, however, which petitioners challenge on account of the CAB's definition of "qualified handicapped individual" and aspects of its 48-hour advance notice provision, we find respondents' position more persuasive. Accordingly, we vacate the regulations in part and remand them in part.

I. BACKGROUND

  1. From Statute to Rulemaking

    Section 504 of the Rehabilitation Act of 1973 (section 504) provides:

    No otherwise qualified handicapped individual ... shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 3

    As enacted, the statute did not provide for administrative implementation of section 504's mandate; it was silent as to the exercise of regulatory authority. 4 In 1976, however, the President issued Executive Order 11,914, requiring the Secretary of Health, Education and Welfare (HEW) to coordinate the implementation and enforcement of section 504 by all federal agencies. 5 In 1977, prodded by an order of our district court, 6 HEW did adopt regulations implementing section 504 as it applied to those programs and activities for which HEW was itself a source of federal financial assistance. 7 Finally, on January 13, 1978, the Secretary of HEW issued guidelines directing other federal agencies to begin their own rulemaking proceedings within ninety days and to issue final regulations no later than one hundred thirty-five days following the close of the comment periods for the proposed rules. 8

    The Civil Aeronautics Board commenced its rulemaking proceedings on June 6,

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    1979. 9 Because of the complexities of the issues in this case, both jurisdictional and substantive, it will be helpful to summarize those proceedings in considerable detail.

    In its Notice of Proposed Rulemaking the Board proposed "new rules to prohibit unlawful discrimination against disabled travelers and to implement section 504 of the Rehabilitation Act of 1973." 10 Although the CAB noted that "[t]his proceeding began at the Board's initiative and with a petition for rulemaking filed by the National Federation of the Blind," 11 petitioners observe, and respondents do not dispute, that "the Board's initiative" was prompted at least in part by pressure from HEW Secretary Joseph Califano. 12 In its discussion of the proposed new rules' "Introduction and Background," however, the Board's position was a strong one:

    A review of the problems that have been presented to the Board regarding difficulties encountered by handicapped persons in air transportation demonstrates not only a need for regulations under section 504 of the Rehabilitation Act, but also a significant need for the handicapped to receive adequate, nondiscriminatory service in air transportation in general.... Therefore, we have decided that the scope of this rulemaking should include any discrimination against passengers and prospective passengers on the basis of a handicapping condition, and the availability of adequate, reasonable service to handicapped persons. We believe that the burden of showing that airline service to handicapped persons cannot be provided should be on the air carrier. 13

    Also included in the Board's "Introduction and Background" discussion were several important references to the agency's statutory authority. First, the CAB wished to "emphasize that the handicapped are protected by the adequacy of service and antidiscrimination provisions of section 404 of the Federal Aviation Act [49 U.S.C. Sec. 1374], which are applicable to all air carriers, whether or not receiving Federal financial assistance." 14 It relied upon this fact as a partial justification for declining to propose any regulation of airline employment practices, noting that other agencies, such as the Department of Labor or the Justice Department, would have "the experience and skill necessary to do the job effectively." 15 Moreover, the CAB reasoned:

    The Board extends direct Federal subsidies only to a small number of air carriers, so that the reach of our section 504 jurisdiction would not have a significant effect on industry employment. While we can prevent discrimination in air transportation under section 404 of the Federal Aviation Act without clear section 504 jurisdiction, the same is not true of employment. The Board would have no authority to regulate employment practices of unsubsidized carriers unless those practices somehow caused discrimination in transportation. 16

    The CAB's initial efforts to implement section 504 were further constrained by its decision "not to propose to require structural modifications of aircraft at this time" on the ground of its having insufficient information regarding alternatives, costs, and benefits. 17 Nevertheless, the Board

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    proposed, and invited public comment upon, regulations that would apply "to all certificated carriers and air taxis [commuter carriers] in their operations with aircraft of more than 30-seat passenger capacity." 18 Conceding that "some aspects of the rules would merely make explicit what is already implicitly required by section 404," 19 and that they might prove too burdensome or impractical for certain small carriers, the Board went on to suggest regulations that it believed

    strike a reasonable balance among the interest of handicapped persons in the greatest possible convenience and freedom of choice in their use of air transportation services, the legitimate requirements of air safety, and the economic reality that costs incurred by carriers will be passed on to consumers in the form of higher air fares, or to the handicapped in the form of special charges. 20

  2. The Proposed Rules: Substance and Scope

    The regulations developed by the CAB were tripartite. Subpart A--"General Provisions"--prohibited "discrimination in air transportation against qualified handicapped persons." 21 It stated that the CAB's purpose in adding a new Part 382--"Nondiscrimination on the Basis of Handicap"--to Chapter II of Title 14, Code of Federal Regulations was

    to ensure: (a) That handicapped persons receive reasonable access to commercial air transportation, (b) that certain specific practices are prohibited, and (c) that certain specific changes in service are made. The part is designed to ensure that transportation of handicapped persons is integrated into the overall air transportation system as much as possible. 22

    Section 382.4 of Subpart A--a single sentence titled "Prohibition against discrimination"--provided:

    A carrier shall not, on the basis of handicap, exclude any qualified handicapped persons from participation in, deny them the benefits of, or otherwise subject them to discrimination in the provision of air transportation or related services. 23

    Section 382.5 of Subpart A prohibited air carriers from providing "different or separate" transportation services to qualified handicapped persons, or from denying any services available to other passengers, unless such actions were "reasonably necessary." 24 Subpart A left the specific words "reasonably necessary" undefined, but did, in section 382.3, define the terms "Carrier," 25 "Conditions for air transportation," 26 "Facility," 27 "Handicapped person," 28

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    and "Qualified handicapped person," 29 each of which assumes considerable significance in the controversy before us.

    Subpart B--"Specific Requirements"--provided detailed guidelines to be followed by each carrier with regard to accessibility of facilities and services, 30 the availability of information, 31 refusal of service, 32 guide dogs, 33 the use of Braille, 34...

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