Paralyzed Veterans Dodson v. U.S. Dep't of Transp. & Elaine L. Chao
| Decision Date | 27 November 2018 |
| Docket Number | C/w 18-5016,No. 17-1272,17-1272 |
| Citation | 909 F.3d 438 |
| Parties | PARALYZED VETERANS OF AMERICA and Larry J. Dodson, Petitioners v. UNITED STATES DEPARTMENT OF TRANSPORTATION and Elaine L. Chao, In Her Official Capacity as Secretary of Transportation, Respondents |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Karianne M. Jones argued the cause for petitioners. With her on the briefs was Javier M. Guzman.
Samantha L. Chaifetz, Attorney, U.S. Department of Justice, Washington, DC, argued the cause for respondents. With her on the brief were Michael S. Raab, Attorney, Steven G. Bradbury, General Counsel, U.S. Department of Transportation, Paul M. Geier, Assistant General Counsel, and Charles Enloe, Washington, DC, Trial Attorney.
Before: Griffith, Circuit Judge, and Edwards and Randolph, Senior Circuit Judges.
Under 49 U.S.C. § 46110(a), petitions for review of specified orders issued by the Secretary of Transportation must be filed in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals for the circuit in which the petitioner resides or has its principal place of business. Section 46110 covers, in particular, judicial review of orders issued under part A of subtitle VII of title 49 of the U.S. Code ("Part A"), including orders issued pursuant to §§ 41708 and 41709. A petition for review of an order issued under Part A must be filed not later than 60 days after the order is issued unless there are reasonable grounds for not filing by the 60th day.
In 2016, the Department of Transportation ("DOT" or "Department") issued a rule requiring airlines to report the number of wheelchairs and scooters that are mishandled after being transported as checked luggage on passenger flights. This so-called "Reporting Rule" was scheduled to take effect on January 1, 2018. On March 21, 2017, however, DOT issued an "Extension Rule" that delayed the effective date of the Reporting Rule by one year. On July 31, 2017, over four months after the issuance of the Extension Rule, Paralyzed Veterans of America and Larry J. Dodson, a paralyzed Air Force veteran, ("the Petitioners") filed a lawsuit in the District Court challenging the Extension Rule. They contended that the rule was procedurally infirm because it was issued without notice-and-comment procedures and it was substantively invalid because it was arbitrary and capricious. In response to this suit, DOT elected not to address the merits of the Petitioners’ claims and instead argued only that the District Court lacked subject-matter jurisdiction over the suit. The District Court agreed with DOT, held that it lacked jurisdiction over this action, and then transferred the case "in the interests of justice" to this court pursuant to 28 U.S.C. § 1631. Paralyzed Veterans of Am. v. U.S. Dep’t of Transp. , 286 F.Supp.3d 111, 120 (D.D.C. 2017).
For the reasons stated below, we affirm the District Court. We agree that if there is jurisdiction to hear this suit, it lies in the courts of appeals. The Petitioners knew that challenges to the Extension Rule were required to be filed pursuant to § 46110(a). Indeed, the Petitioners cited the correct authority in their complaint. We therefore reject the Petitioners’ request that this case be transferred back to the District Court. We further dismiss the case because the Petitioners’ claim was filed after the 60-day statutory deadline and there are no "reasonable grounds" justifying their untimely filing.
In 2011, DOT initiated notice-and-comment rulemaking to amend 14 C.F.R. § 234.6 to require airlines to report the number of wheelchairs and scooters that are delayed, damaged, or lost as checked luggage on domestic flights. The Department stated that the proposed data collection would be "crucial to understanding the magnitude of the problem as this data is not available to us through other means." Reporting Ancillary Airline Passenger Revenues, 76 Fed. Reg. 41,726, 41,728 (July 15, 2011). It further stressed that "[i]t is very important that passengers with mobility disabilities arrive at their destination with their wheelchair/scooter in good working order" because "[w]ithout these devices, they will have great difficulty in exiting the airport or may be confined to their hotel or place of visit." Id.
Following notice-and-comment proceedings, DOT adopted the Reporting Rule on November 2, 2016. Reporting of Data for Mishandled Baggage and Wheelchairs and Scooters Transported in Aircraft Cargo Compartments, 81 Fed. Reg. 76,300. Under the rule, air carriers are required, on a monthly basis, "to report the number of mishandled wheelchairs and scooters and the total number of wheelchairs/scooters transported in the aircraft cargo department." Id. at 76,303. The Department set January 1, 2018, as the compliance date for the reporting requirement because that date would "provide[ ] air carriers with adequate time to update their internal systems and reporting processes." Id. at 76,305.
In January 2017, however, the White House issued a regulatory freeze memorandum, directing agencies to postpone for 60 days rules that had been published in the Federal Register but had not yet become effective. This directive did not appear to apply to the Reporting Rule because that rule had already become effective. However, according to the Petitioners, an industry lobbying group, Airlines for America, contacted officials at DOT multiple times to request that the Reporting Rule be delayed. Pets.’ Br. 7.
On March 21, 2017, DOT issued the Extension Rule, a final rule that amended 14 C.F.R. § 234.6. DOT’s announcement said:
The Department of Transportation is amending its regulations by extending the compliance date of its final rule on reporting of data for mishandled baggage and wheelchairs in aircraft cargo compartments from January 1, 2018 to January 1, 2019. Under that final rule, the mishandled-baggage data that air carriers are required to report changed, from the number of Mishandled Baggage Reports and the number of domestic passenger enplanements to the number of mishandled bags and the number of enplaned bags. The rule also requires separate statistics for mishandled wheelchairs and scooters used by passengers with disabilities and transported in aircraft cargo compartments. This extension is in response to a request by Airlines for America (A4A) and Delta.
Reporting of Data for Mishandled Baggage and Wheelchairs and Scooters Transported in Aircraft Cargo Compartments; Extension of Compliance Date, 82 Fed. Reg. 14,437, 14,437 (Mar. 21, 2017). The Extension Rule was adopted without notice-and-comment rulemaking.
Paralyzed Veterans voiced strong objections to the Extension Rule. In March 2017, nearly two weeks before the rule’s publication, the group issued a press release opposing any change to the Reporting Rule. Addendum to Pets.’ Br. 24. Members of Paralyzed Veterans also expressed their concerns in letters to subcommittees in both the House of Representatives and the Senate in March and May 2017. Id. at 32, 38–39. In addition, the Executive Director of Paralyzed Veterans wrote to the Secretary of Transportation to object to the delayed compliance date. Id. at 26–27. These efforts were futile, however. Even though they had received no encouraging responses from DOT or members of Congress, the Petitioners waited until July 31, 2017, to file their complaint in the District Court.
Prior to the adoption of the Reporting Rule in 2016, 49 U.S.C. §§ 41708 and 41709 were the statutory authorities cited by DOT to support rules incorporated as a part of 14 C.F.R. § 234.6. Paralyzed Veterans of Am. , 286 F.Supp.3d at 118. Section 41708 permits the Secretary to require monthly reports from air carriers. See 49 U.S.C. § 41708(b)(1)(A) (). And § 41709 authorizes the Secretary to specify the records that air carriers must keep. 49 U.S.C. § 41709(a) (). Both §§ 41708 and 41709 appear in Part A, and challenges to actions taken by DOT pursuant to these provisions are governed by 49 U.S.C. § 46110(a).
The statutory authorities cited by DOT to support the Reporting Rule and the Extension Rule, both of which amended 14 C.F.R. § 234.6, were mistakenly listed as " 49 U.S.C. 329, 41101, and 41701." See Reporting of Data for Mishandled Baggage and Wheelchairs and Scooters Transported in Aircraft Cargo Compartments, 81 Fed. Reg. 76,300, 76,303 (Nov. 2, 2016) ; Reporting of Data for Mishandled Baggage and Wheelchairs and Scooters Transported in Aircraft Cargo Compartments; Extension of Compliance Date, 82 Fed. Reg. 14,437, 14,438 (Mar. 21, 2017). The parties agree that DOT should have cited §§ 41708 and 41709 to support these rules.
On July 31, 2017, the Petitioners filed suit in the District Court, alleging that DOT acted unlawfully by issuing the Extension Rule without notice and comment and without lawful justification. In addition, the Petitioners moved to stay the Extension Rule. In response, DOT cited 49 U.S.C. § 46110 and moved to dismiss the case for lack of jurisdiction.
The Petitioners argued that jurisdiction over this matter properly originated in the District Court, not in the court of appeals. The Petitioners pointed out that, in promulgating the Extension Rule, DOT cited 49 U.S.C. §§ 329, 41101, and 41701 as authority to support the rule. The Petitioners acknowledge that §§ 41101 and 41701 both appear in Part A, but point out that neither of...
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