Ass'n of Flight Attendants-CWA, AFL-CIO v. Huerta

• Decision Date: 08 May 2015
• Docket Number: No. 13–1316.,13–1316.
• Citation: 785 F.3d 710
• Parties: ASSOCIATION OF FLIGHT ATTENDANTS–CWA, AFL–CIO, Petitioner v. Michael P. HUERTA and Federal Aviation Administration, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

785 F.3d 710

ASSOCIATION OF FLIGHT ATTENDANTS–CWA, AFL–CIO, Petitioner

v.Michael P. HUERTA and Federal Aviation Administration, Respondents.

No. 13–1316.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 10, 2014.

Decided May 8, 2015.

Amanda C. Dure argued the cause for petitioner. With her on the briefs was Michael J. Pangia.

Jeffrey E. Sandberg, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief were Stuart F. Delery, Assistant Attorney General, Ronald C. Machen, Jr., U.S. Attorney at the time the brief was filed, and Mark B. Stern, Attorney.

Before: ROGERS, Circuit Judge, BROWN, Circuit Judge, and EDWARDS, Senior Circuit Judge.

Opinion

EDWARDS, Senior Circuit Judge:

On October 31, 2013, the Federal Aviation Administration (“FAA”) issued FAA Notice N8900.240, Expanded Use of Passenger Portable Electronic Devices (“Notice N8900.240” or “the Notice”). The Notice is an internal guidance document issued to FAA aviation safety inspectors concerning the use and stowage of portable electronic devices (“PEDs”) aboard commercial and other aircraft. On December 30, 2013, the Association of Flight Attendants (“AFA”) filed a petition for review with this court challenging Notice N8900.240 on the ground that “the FAA impermissibly and substantially altered and effectively amended 14 C.F.R. § 121.589, the regulation that pertains to carry-on baggage on an aircraft,” without adhering to the notice and comment requirements of the Administrative Procedure Act (“APA”), 5 U.S.C. § 553. Petitioner's Br. 5.

The AFA seeks to invoke this court's jurisdiction under 49 U.S.C. § 46110(a), which provides that “a person disclosing a substantial interest in an order issued by” the FAA “may apply for review” in this court “not later than 60 days after the order is issued.” The FAA claims that this court lacks jurisdiction over the petition for review because the Notice does not constitute final agency action. See, e.g., Vill. of Bensenville v. FAA, 457 F.3d 52, 68 (D.C.Cir.2006) (noting that jurisdiction under 49 U.S.C. § 46110(a) is limited to review of “final order[s]”). We agree.

In order for an agency action to be viewed as “final agency action” it “must mark the ‘consummation’ of the agency's decisionmaking process,” rather than being “tentative or interlocutory.” Bennett v. Spear, 520 U.S. 154, 177–78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (citation omitted). And it must determine “rights or obligations,” or produce “legal consequences.” Id. at 178, 117 S.Ct. 1154 (internal quotation marks omitted). Notice N8900.240 does not satisfy these requirements. The Notice is nothing more than an internal guidance document that does not carry the “force and effect of law.” Perez v. Mortgage Bankers Ass'n, ––– U.S. ––––, 135 S.Ct. 1199, 1204, 191 L.Ed.2d 186 (2015). Therefore, the Notice does not reflect final agency action.

It does not matter that Notice N8900.240 may reflect a change in the FAA's interpretation of the regulation embodied in 14 C.F.R. § 121.589. In Perez, the Supreme Court explained that:

Not all “rules” must be issued through the notice-and-comment process. Section 4(b)(A) of the APA provides that, unless another statute states otherwise, the notice-and-comment requirement “does not apply” to “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” 5 U.S.C. § 553(b)(A).... [T]he critical feature of interpretive rules is that they are “issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers.” The absence of a notice-and-comment obligation makes the process of issuing interpretive rules comparatively easier for agencies than issuing legislative rules. But that convenience comes at a price: Interpretive rules “do not have the force and effect of law and are not accorded that weight in the adjudicatory process.”

Id. at 1203–04 (citations omitted). As Perez makes clear, the APA “permit[s] agencies to promulgate freely [interpretive] rules—whether or not they are consistent with earlier interpretations” of the agency's regulations. Id. at 1207; see also Hudson v. FAA, 192 F.3d 1031, 1035–36 (D.C.Cir.1999) (holding that an agency may change its policy statements as it sees fit without following APA notice and comment procedures). Such agency interpretations and policy statements do not “amend” the regulations to which they refer. As noted in Perez, “[o]ne would not normally say that a court ‘amends' a statute when it interprets its text. So too can an agency ‘interpret’ a regulation without ‘effectively amend[ing]’ the underlying source of law.” Id. at 1208 (alteration in original).

On the record before us, it is clear that Notice N8900.240 does not purport to amend any FAA regulation, and it does not otherwise carry the force of law. FAA regulations prohibit the use of most PEDs during flight unless an airline determines that they will not interfere with the aircraft's navigation or communications. 14 C.F.R. § 121.306. The FAA has long advised that PED use be allowed during the main portion of flights, but barred during takeoff and landing. Although the agency's recommendations are nonbinding, most airlines followed this approach. In 2012, the FAA reconsidered its stance. The agency created a streamlined procedure for airlines to use to determine whether expanded PED use poses a safety risk. Although the FAA's guidance on PEDs remained nonbinding, many airlines have adopted new procedures that permit passengers to use PEDs for the entire duration of their flights.

Notice N8900.240 does not alter this regulatory regime. The Notice merely provides guidance to aviation safety inspectors who enforce FAA regulations. Moreover, Notice N8900.240 creates no rights or obligations, and generates no legal consequences. No airline need alter any policy in response to it. The Notice does not eliminate the discretion of safety inspectors or require that any particular carry-on baggage program be approved or denied. And the Notice does not contradict existing regulations regarding stowage of carry-on baggage.

In sum, because the disputed Notice does not determine any rights or obligations, or produce legal consequences, it does not reflect “final action” by the FAA. Therefore, this court has no jurisdiction to consider AFA's challenge to Notice N8900.240.

I. Background

The FAA requires airlines to have an agency-approved carry-on baggage program to control the size and amount of luggage that passengers can bring aboard their planes. 14 C.F.R. § 121.589(a). Passenger aircraft cannot take off unless each article of baggage is stowed in an appropriate compartment or under a seat. Id. § 121.589(b), (c). The regulations do not define carry-on baggage, however. Instead, FAA guidance documents instruct airlines to describe “what you include in the term ‘Carry–On Baggage’ ” as part of a carry-on baggage program. FAA Advisory Circular No. 12129B, Carry–On Baggage (2000), at 2.

FAA regulations nominally ban the operation of most PEDs during flight, save for portable voice recorders, hearing aids, pacemakers, and electric shavers. 14 C.F.R. § 121.306. However, this regulation contains a broad exception allowing for the use of any device that the airline determines “will not cause interference with the navigation or communication system of the aircraft.” Id. § 121.306(b)(5). Since the late 1950s, the FAA has worked with the airline industry to study the risks involved in PED use and produce guidance documents to assist airlines in making safety determinations about device usage during flight. Prior to 2012, the FAA recommended that airlines allow passengers to use devices during the main portion of a flight, but prohibit use during takeoff and landing. This guidance was nonbinding; however, most airlines followed the FAA recommendation because the agency provided no direction on how to demonstrate that devices could be used safely during takeoff and landing.

The FAA decided to reevaluate its safety recommendations in 2012. The agency published a notice in the Federal Register seeking public comment on its guidance to airlines regarding how to determine whether and when electronic devices are safe for in-flight use. In the notice, the agency “stress[ed] that the existing regulations allow [airlines] to authorize the use of PEDs, and that no specific FAA approval is required.” Passenger Use of Portable Electronic Devices on Board Aircraft, 77 Fed.Reg. 53,15902, 53,160 (Aug. 31, 2012). More than a thousand comments were submitted, including one by the AFA. As promised in the notice, the FAA assembled an Aviation Rulemaking Committee (“Committee”) to review the comments and recommend changes to the agency's policies. The Committee was composed of representatives from a variety of stakeholder groups, including the AFA.

The Committee's report, issued on September 30, 2013, made technical and operational recommendations aimed at helping airlines safely expand passenger use of PEDs. The Committee designed a method for airlines to use in assessing whether passengers can safely keep their devices on during takeoff and landing. The AFA representative dissented from the method recommended by the Committee, advocating instead for a more conservative approach. The Committee also recommended that the FAA update its policy and guidance documents on the stowage of baggage and other items to accommodate expanded use of PEDs. This recommendation was unanimous.

In response to the report, the FAA produced two sets of guidance documents. The first, FAA Information for Operators 13010, Expanding Use of Passenger Portable Electronic Devices (PED) (2013), and its supplement, are directed at airlines interested in allowing passengers to use PEDs during takeoff and landing. These documents lay out a roadmap, based on the Committee's recommendations, for evaluating aircraft and revising policies so that an airline can...