Nat'l Fed'n of the Blind v. U.S. Dep't of Transp.

• Decision Date: 28 January 2015
• Docket Number: Civil Action No. 14–cv–85 TSC
• Citation: 78 F.Supp.3d 407
• Parties: National Federation of the Blind, et al., Plaintiffs, v. U.S. Department of Transportation, et al., Defendants.
• Court: U.S. District Court — District of Columbia

78 F.Supp.3d 407

National Federation of the Blind, et al., Plaintiffs

v.U.S. Department of Transportation, et al., Defendants.

Civil Action No. 14–cv–85 TSC

United States District Court, District of Columbia.

Signed January 28, 2015

Daniel F. Goldstein, Gregory P. Care, evin D. Docherty, Joseph B. Espo, Brown, Goldstein & Levy, L.L.P., Baltimore, MD, for Plaintiffs.

Nathan Michael Swinton, U.S. Department Of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

TANYA S. CHUTKAN, United States District Judge

Plaintiffs National Federation of the Blind, Marc Maurer, and Anil Lewis (collectively, “Plaintiffs”) brought this action challenging the Department of Transportation's (“DOT”) regulations on the accessibility of automated airport kiosks. See Nondiscrimination on the Basis of Disability in Air Travel: Accessibility of Web Sites and Automated Kiosks at U.S. Airports, 78 Fed.Reg. 67,882 (Nov. 12, 2013) (the “Final Rule”). Plaintiffs claim that DOT did not have statutory authority to promulgate the Final Rule; that even if DOT did have such authority, it relied on improper evidence (the airlines' costs of compliance) in promulgating the Final Rule; that DOT failed to properly consider other factors in its analysis; and that DOT improperly relied on information that it did not disclose until the Final Rule was announced. (Compl. ¶¶ 32–78). DOT moves to dismiss the Complaint because it alleges that Congress vested courts of appeals with exclusive jurisdiction to review DOT orders, including the Final Rule, under 49 U.S.C. § 46110. Because the Final Rule is the type of agency action which qualifies as an “order” under section 46110 pursuant to binding D.C. Circuit precedent, this Court lacks jurisdiction over Plaintiffs' claims. However, the Court will not dismiss this action, but will instead transfer it to the D.C. Circuit.

I. BACKGROUND

Automated airline kiosks “allow[ ] travelers to access information about flights, check in for flights, print tickets and boarding passes, select seats, upgrade to business or first class cabins, check baggage, and perform other transactions relevant to their air travel plans.” (Compl. ¶ 20). Automated kiosks have been in widespread use in airports since 1995, and in 2004 DOT began considering the accessibility of these kiosks to those with mobility or vision impairments. (Id. at ¶¶ 18, 22). In 2011, DOT issued a supplemental notice of proposed rulemaking to specifically address airline website and kiosk accessibility. (Id. at ¶ 24). The proposed rule would have required all new kiosk orders initiated 60 days after the rule's effective date to be accessible. (Id. at ¶ 25). DOT received 84 comments to its proposed rulemaking, and issued the Final Rule approximately two years after its initial proposal. (Id. at ¶ 28). The Final Rule extended the deadline for new orders compliance from 60 days to 36 months, and reduced the percentage of accessible kiosks required from 100 percent to 25 percent, giving the airlines ten years to reach this threshold. (Id. at ¶ 29). Plaintiffs filed the Complaint challenging these changes as inadequate and contrary to law, and Defendants now move to dismiss.

II. LEGAL STANDARD

“ ‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized by Constitution and statute.’ ” Gunn v. Minton, ––– U.S. ––––, 133 S.Ct. 1059, 1064, 185 L.Ed.2d 72 (2013)(citation omitted). “Limits on subject-matter jurisdiction ‘keep the federal courts within the bounds the Constitution and Congress have prescribed,’ and those limits ‘must be policed by the courts on their own initiative.’ ” Watts v. SEC, 482 F.3d 501, 505 (D.C.Cir.2007) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) ). This is particularly true in the agency review context, where “Congress is free to choose the court in which judicial review of agency decisions may occur.” Am. Petroleum Inst. v. SEC, 714 F.3d 1329, 1332 (D.C.Cir.2013) (internal quotation marks omitted). In the D.C. Circuit, “the normal default rule is that persons seeking review of agency action go first to district court rather than to a court of appeals ... [unless] a direct-review statute specifically gives the court of appeals subject-matter jurisdiction to directly review agency action.” Id. (internal quotation marks omitted).

In evaluating a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the court must “assume the truth of all material factual allegations in the complaint and ‘construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged[.]’ ” Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C.Cir.2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C.Cir.2005) ). Nevertheless, “ ‘the court need not accept factual inferences drawn by plaintiffs if those inferences are not supported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions.’ ” Disner v. United States, 888 F.Supp.2d 83, 87 (D.D.C.2012) (quoting Speelman v. United States, 461 F.Supp.2d 71, 73 (D.D.C.2006) ). The court “is not limited to the allegations of the complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir.1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, “a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C.2000) (citing Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C.Cir.1992) ). Courts may raise issues of subject matter jurisdiction sua sponte, regardless of whether the parties contest the court's jurisdiction. NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C.Cir.2008).

III. DISCUSSION

a. 49 U.S.C. § 46110

Section 46110(a) is a direct-review statute which vests exclusive jurisdiction¹ in the courts of appeals for review of certain agency actions—primarily actions by the DOT or the Federal Aviation Administration. The statute reads (in relevant part):

(a) Filing and venue ... a person disclosing a substantial interest in an order issued by the Secretary of Transportation ... may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business.²

49 U.S.C. § 46110(a). Defendants' motion to dismiss turns on the meaning of the word “order” in the statute, specifically whether rules and regulations (like the Final Rule) qualify as orders under section 46110.

The D.C. Circuit has addressed the meaning of the term “order” in direct-review statutes, including section 46110. In Inv. Co. Inst. v. Bd. of Governors of Fed. Reserve Sys., 551 F.2d 1270 (D.C.Cir.1977), the court held that “[a]lthough some courts persist in reading special review statutes covering ‘orders' as not encompassing regulations, the general approach taken by United Gas Pipe Line is no longer good law in this circuit ... this court [has] found jurisdiction to review informal rulemaking under statutes providing for review of ‘orders' in the courts of appeals[.]” Id. at 1276–77 (citation omitted). More recently, the D.C. Circuit has explained that it is not necessarily the type of agency action that controls for 46110 purposes, but the nature of the action:

“the term ‘order’ in this provision should be read ‘expansively.’ A reviewable order under 49 U.S.C. § 446110(a) ‘must possess the quintessential feature of agency decisionmaking suitable for judicial review: finality.’ To be deemed ‘final,’ an order must mark the ‘consummation’ of the agency's decisionmaking process, and must determine ‘rights or obligations' or give rise to ‘legal consequences.’ ”

City of Dania Beach v. FAA, 485 F.3d 1181, 1187 (D.C.Cir.2007) (citations omitted); see also Village of Bensenville v. FAA, 457 F.3d 52, 68 (D.C.Cir.2006) ; Sima Products Corp. v. McLucas, 612 F.2d 309, 312 (7th Cir.1980) (“By adopting a liberal construction of ‘order,’ FAA actions which are the product of informal rulemaking, such as in this case, may be reviewed by courts of appeals”) (applying predecessor to section 46110 ).

Consistent with these decisions, the D.C. Circuit has repeatedly (either explicitly or implicitly) asserted jurisdiction to directly review rules and regulations, in addition to more traditional “orders,” under section 46110. See U.S. Air Tour Ass'n v. FAA, 298 F.3d 997, 1012 (D.C.Cir.2002) (“The Trust filed its petition for review pursuant to 49 U.S.C. § 446110(a), which authorizes review in this circuit of certain final ‘order[s] issued by the ... Administrator of the Federal Aviation Administration.’ The FAA does not dispute that the Limitations Rule is a final order reviewable under that section”) (footnote omitted); Paralyzed Veterans of Am. v. Civil Aeronautics Board, 752 F.2d 694, 705 (D.C.Cir.1985), rev'd sub nom. on other grounds U.S. Dep't of Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 106 S.Ct. 2705, 91 L.Ed.2d 494 (1986) (“Jurisdiction in this case [challenging Civil Aeronautics Board Final Rule] is provided by 49 U.S.C. § 1486(a) [predecessor to 46110]”); Helicopter Ass'n Int'l, Inc. v. FAA, 722 F.3d 430, 431 (D.C.Cir.2013) (challenging FAA authority to issue rule); Spirit Airlines, Inc. v. U.S. Dep't of Transp., 687 F.3d 403, 408 (D.C.Cir.2012) (challenging DOT rule); Sabre, Inc. v. U.S. Dep't of Transp., 429 F.3d 1113, 1115 (D.C.Cir.2005) (same); Air Transp. Ass'n of Canada v. FAA, 323 F.3d 1093, 1094 (D.C.Cir.2003) (challenging FAA regulation); Cronin v. FAA, 73 F.3d 1126, 1128 (D.C.Cir.1996) (challenging DOT and FAA regulations); Nat'l Air Transp. Ass'n v. McArtor, 866 F.2d 483, 484 (D.C.Cir.1989) (challenging FAA regulations).

Plaintiffs do not dispute that the Final Rule is...