United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 10, 2016 Decided June 28, 2016
No. 15–1026
NATIONAL FEDERATION OF THE BLIND, ET AL.,
PETITIONERS
v.
UNITED STATES DEPARTMENT OF TRANSPORTATION
AND ANTHONY FOXX,
RESPONDENTS
Consolidated with 15–5078
On Petition for Review of an Order
of the Department of Transportation and
on Petition for Writ of Mandamus
(1:14-cv-00085)
Kevin D. Docherty argued the cause for the petitioners.
Daniel F. Goldstein, Joseph B. Espo and Gregory P. Care
were with him on brief.
Abby C. Wright, Attorney, United States Department of
Justice, argued the cause for the respondents. Benjamin C.
Mizer, Principal Deputy Assistant Attorney General, Michael
S. Raab, Attorney, Paul M. Geier, Assistant General Counsel
for Litigation, United States Department of Transportation,
2
Peter J. Plocki, Deputy Assistant General Counsel for
Litigation, Joy K. Park, Senior Trial Attorney, and Blane A.
Workie, Assistant General Counsel for Aviation Enforcement
and Proceedings, were with her on brief.
Before: HENDERSON, GRIFFITH and PILLARD, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Petitioners
National Federation of the Blind, Marc Maurer and Anil Lewis
(collectively, NFB) challenge a rule issued by the United States
Department of Transportation (DOT). The rule requires that
air carriers begin to purchase ticketing kiosks accessible to
blind persons within three years of the rule taking effect so that
25 per cent of kiosks eventually will be blind-accessible.
After DOT issued its final rule, NFB filed a complaint in
district court, challenging the rule because, among other
reasons, it does not require air carriers to make all airport
kiosks accessible to the blind. The district court concluded
that it lacked jurisdiction under 49 U.S.C. § 46110(a) because
the rule is an “order” over which the court of appeals has
exclusive jurisdiction.
Instead of dismissing NFB’s complaint, however, the
district court transferred the complaint to our court, re-styled as
a petition for review. NFB subsequently filed a notice of
appeal—which we construed as a petition for a writ of
mandamus—challenging the district court’s conclusion that it
lacked jurisdiction. For the following reasons, we dismiss
NFB’s petition for review and deny its mandamus petition.
3
I. BACKGROUND
The Air Carrier Access Act of 1986 (ACAA), Pub. L. No.
99-435, 100 Stat. 1080, prohibits air carriers from
“discriminat[ing] against any otherwise qualified handicapped
individual” on the basis of disability and grants the DOT
Secretary the authority to promulgate regulations to “ensure
non-discriminatory treatment of qualified handicapped
individuals.” Id. Using its authority, DOT issued a
supplemental notice of proposed rulemaking in 2011 which
proposed that all future automated ticketing kiosks purchased
by certain domestic and foreign air carriers 1 be accessible to
blind persons. See Nondiscrimination on the Basis of
Disability in Air Travel: Accessibility of Web Sites and
Automated Kiosks at U.S. Airports, 76 Fed. Reg. 59,307,
59,309 (Sept. 26, 2011). This requirement would have taken
effect sixty days after promulgation of the final rule. Id.
DOT nevertheless sought comment on a
less-than-100-per-cent-accessible kiosk requirement and on
the timing of implementation. Id. at 59,320.
In light of comments from both air carriers and advocacy
groups for disabled passengers, DOT altered its approach.
DOT now requires that covered air carriers purchase
blind-accessible kiosks until at least 25 per cent of the
automated kiosks at each location in domestic airports are
1
Both the proposed rule and final rule apply to only United
States airports having 10,000 or more enplanements per year.
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, 67,883 (Nov. 12, 2013) (Final Rule or Rule);
Nondiscrimination on the Basis of Disability in Air Travel:
Accessibility of Web Sites and Automated Kiosks at U.S. Airports,
76 Fed. Reg. 59,307, 59,309 (Sept. 26, 2011).
4
accessible. 2 See Nondiscrimination on the Basis of Disability
in Air Travel: Accessibility of Web Sites and Automated
Kiosks at U.S. Airports (Final Rule or Rule), 78 Fed. Reg.
67,882, 67,883 (Nov. 12, 2013). The Final Rule became
effective on December 12, 2013, and DOT provided a grace
period wherein air carriers are not required to begin purchasing
accessible kiosks until three years after the effective date of the
Rule’s implementation. Id. at 67,882–83.
NFB filed its complaint in district court on January 22,
2014, seventy-one days after DOT issued the Final Rule.
NFB sought declaratory and injunctive relief under the
Administrative Procedure Act (APA), 5 U.S.C. §§ 701–706,
for DOT’s alleged failure to comply with the ACAA. NFB
alleged that the 25 per cent accessibility requirement and
three-year grace period violated the ACAA’s ban on
discrimination against disabled individuals and resulted from
arbitrary and capricious decision-making. The district court
concluded that it lacked jurisdiction because the Final Rule is
an “order” and 49 U.S.C. § 46110(a) vests the court of appeals
with exclusive jurisdiction of DOT orders. Nat’l Fed’n of the
Blind v. DOT, 78 F. Supp. 3d 407, 414 (D.D.C. 2015).
Although NFB filed its complaint seventy-one days after DOT
issued the Final Rule—and, if construed to be a petition for
review, was therefore time barred under the sixty-day filing
deadline of section 46110(a)—the district court declined to
dismiss the complaint and instead transferred the complaint to
our court to determine whether the untimely filing was
excusable. Id. at 416. NFB subsequently filed a notice of
appeal on February 26, 2015, challenging the district court’s
no-jurisdiction conclusion. We construed the notice of appeal
2
The Rule also requires that disabled passengers be given
priority access to the accessible kiosks because not all kiosks will be
accessible. Final Rule, 78 Fed. Reg. at 67,883.
5
as a petition for a writ of mandamus and consolidated the two
petitions for review.
II. ANALYSIS
NFB claims that a writ of mandamus should issue because
the district court erred in its jurisdictional analysis. NFB
further argues that, even if the district court correctly
determined that it lacked jurisdiction, NFB’s untimely filing
should be excused for reasonable grounds under section
46110(a) due to its confusion over the appropriate forum to
challenge DOT’s Final Rule. On the merits, NFB asserts that
we should either vacate the Rule because DOT failed to require
that all future kiosks be accessible or remand the Rule for
further review in light of other alleged flaws in DOT’s
decision-making process. We do not reach NFB’s arguments
on the merits because we conclude that the district court lacked
jurisdiction of NFB’s complaint and that reasonable grounds
do not excuse NFB’s untimely filing.
A.
NFB first requests that we issue a writ of mandamus
because the district court erred in concluding that it lacked
jurisdiction of NFB’s complaint. In reviewing a request for a
writ of mandamus, “[t]he threshold question is whether the
[d]istrict [c]ourt’s . . . ruling constituted legal error. If not,
mandamus is of course inappropriate.” In re Kellogg Brown
& Root, Inc., 756 F.3d 754, 756 (D.C. Cir. 2014). “If the
[d]istrict [c]ourt’s ruling was erroneous,” however, we then
determine “whether that error is the kind that justifies
mandamus.” Id. at 756–57. Because we agree with DOT
that the district court did not err in concluding that it lacked
jurisdiction, we need go no further.
6
Section 46110(a) provides that “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.” 49 U.S.C. § 46110(a)
(emphasis added). Although section 46110(a) does not
specify a finality requirement, we have interpreted section
46110(a) in light of the APA’s definition of “order” at 5 U.S.C.
§ 551(6) to require that a DOT order must be final before it is
appealable. See SecurityPoint Holdings, Inc. v. TSA, 769 F.3d
1184, 1187 (D.C. Cir. 2014). We have not, however,
determined whether a final rule issued by DOT should be
considered an order under section 46110(a).
According to NFB, the “normal default rule,” Pet’rs’ Br.
22 (quoting Am. Petroleum Inst. v. SEC, 714 F.3d 1329, 1332
(D.C. Cir. 2013)), is that the district court is the appropriate
forum for review of agency rulemaking unless there is an
applicable direct-review statute that “specifically gives the
court of appeals subject-matter jurisdiction.” Id. (emphasis in
original) (quoting Watts v. SEC, 482 F.3d 501, 505 (D.C. Cir.
2007)). NFB then points to language from Safe Extensions,
Inc. v. FAA, 509 F.3d 593, 598 (D.C. Cir. 2007), and from
SecurityPoint to argue that we have previously relied on the
APA to define “order” under section 46110(a). In NFB’s
view, because the APA both allegedly controls our
interpretation of section 46110(a) and excludes rulemaking
from its definition of “order,” section 46110(a) does not vest
exclusive jurisdiction of DOT rulemaking review in the court
of appeals. In response, DOT asserts that our recent decision
in New York Republican State Committee v. SEC (NYRSC),
799 F.3d 1126 (D.C. Cir. 2015)—which interpreted a nearly
identical direct-review provision of the Investment Advisers
Act, 15 U.S.C. § 80b-13(a), to include rulemaking under
7
“order,” see id. at 1129–30—controls the case. We agree with
DOT that NYRSC is dispositive.
Our precedent holding that “order” in certain
direct-review statutes encompasses the review of rulemakings
dates at least to our decision in Investment Company Institute v.
Board of Governors of the Federal Reserve System, 551 F.2d
1270 (D.C. Cir. 1977). In Investment Co., we reviewed the
direct-review provision of the Bank Holding Company Act of
1956. See id. at 1275–78. In light of intervening Supreme
Court decisions, we abandoned our earlier approach to the
scope of “order” in direct-review statutes, concluding that
“ ‘order’ is interpreted to mean any agency action capable of
review on the basis of the administrative record.” Id. at 1278.
We further explained that the term should not be limited by the
APA definition of “order” because it “has several frequently
utilized meanings which vary in scope, and it is therefore not
surprising that different sections of the same statute might use
the word in different ways.” Id.; see also City of Rochester v.
Bond, 603 F.2d 927, 933 n.26 (D.C. Cir. 1979) (“[C]ourts
sometimes have construed ‘order’ for purposes of special
review statutes more expansively than its definition in the
APA, notably to permit direct review of regulations
promulgated through informal notice-and-comment
rulemaking.”).
NYRSC built on the foundation established in Investment
Co. Under the Investment Advisers Act of 1940, the
Congress had provided for direct review of certain orders of the
Securities and Exchange Commission (SEC) in the court of
appeals: “Any person or party aggrieved by an order issued
by the Commission . . . may obtain a review of such order in”
an appropriate court of appeals. 15 U.S.C. § 80b-13(a). Like
NFB, the NYRSC plaintiffs filed a complaint in district court
seeking judicial review of SEC rulemaking and the district
8
court dismissed the complaint for lack of subject matter
jurisdiction. N.Y. Republican State Comm. v. SEC, 70
F. Supp. 3d 362, 363–64 (D.D.C. 2014). We concluded that
“order” in section 80b–13(a) included SEC rules. NYRSC,
799 F.3d at 1129–30. We explained that “[f]or nearly four
decades, it has been blackletter administrative law that, absent
countervailing indicia of congressional intent, statutory
provisions for direct review of orders encompass challenges to
rules.” Id. at 1129. And, “absent contrary congressional
intent, a statutory review provision creating a right of direct
judicial review in the court of appeals of an administrative
‘order’ authorizes such review of any agency action that is
otherwise susceptible of review on the basis of the
administrative record alone.” Id. at 1131. Because, in a
rulemaking, “there is no need for judicial development of an
evidentiary record,” we saw “no gain from vesting jurisdiction
in district courts” and noted that exclusive review in the court
of appeals would eliminate the potential delay and expense of
bifurcating review between the district and appellate courts. 3
Id.
Considering the breadth of the language and analysis in
NYRSC, we can easily conclude that section 46110(a) includes
review of DOT rulemakings. The language of the
direct-review provisions in section 46110(a) and section
80b-13(a) are almost identical—permitting a party “disclosing
a substantial interest in” (“aggrieved by”) “an order issued by”
the agency to “apply for review of” (“obtain a review of”) the
3
We also cited to multiple earlier examples of the proper
application of the Investment Co. presumption to direct-review
statutes—including the district court order before us—and explained
that our Court’s willingness to exercise jurisdiction on direct review
sub silentio “is consistent with the recognized controlling force of
Investment Company.” NYRSC, 799 F.3d at 1131.
9
order in the court of appeals. Compare 49 U.S.C. § 46110(a),
with 15 U.S.C. § 80b-13(a) (language in parentheses). And,
beyond the close linguistic match between these two
provisions, the analysis set forth in NYRSC compels the
conclusion that section 46110(a) includes agency rules within
the term “order,” as there is no evidence that the Congress
intended to vest the district court with jurisdiction of
challenges to DOT rules. 799 F.3d at 1131. This conclusion
is consistent with our precedent and that of our sister circuits
that have endorsed, either sub silentio or through detailed
analysis, the court of appeals’s exclusive jurisdiction to review
DOT or Federal Aviation Administration (FAA) rulemakings
in the first instance. 4 See, e.g., Avera v. Airline Pilots Ass’n
Int’l, 436 F. App’x 969, 973 (11th Cir. 2011); Nw. Airlines,
Inc. v. Goldschmidt, 645 F.2d 1309, 1313–14 (8th Cir. 1981)
(reviewing rule pursuant to 49 U.S.C. § 1486(a) (1980),
section 46110(a)’s predecessor statute); Sima Prods. Corp. v.
McLucas, 612 F.2d 309, 312–14 (7th Cir. 1980) (same); see
also Safari Aviation Inc. v. Garvey, 300 F.3d 1144, 1147 (9th
Cir. 2002) (asserting jurisdiction of FAA rule without
addressing scope of “order” in section 46110); U.S. Air Tour
Ass’n v. FAA, 298 F.3d 997, 1012–13 (D.C. Cir. 2002) (same);
North Carolina v. FAA, 957 F.2d 1125, 1127–28 (4th Cir.
1992) (same for section 1486(a)).
4
The only case NFB identifies where a district court found
jurisdiction of a challenge to an FAA or DOT rule under section
46110(a)—Harrington v. Delta Air Lines, Inc., No. Civ. A. 04–
12558–NMG, 2006 WL 1581752 (D. Mass. Feb. 21,
2006)—involved only a conclusory assertion of jurisdiction with
little underlying analysis in an unpublished decision. Id. at *7 n.4
(“Because Class Plaintiffs challenge a rule, not an order, [section
46110(a)] appears to be inapplicable.”).
10
NFB argues that our precedent, including National Mining
Ass’n v. DOL, 292 F.3d 849, 856, 858–59 (D.C. Cir. 2002) (per
curiam), Watts, Safe Extensions and SecurityPoint, supports its
argument that “order” has a more restricted meaning than
enunciated in NYRSC. We are unconvinced. NYRSC
addressed National Mining Ass’n and Watts at length. See
NYRSC, 799 F.3d at 1132–33. We distinguished Watts as
limited to whether SEC’s instruction to its employees not to
respond to a testimonial subpoena was either “reviewable
agency action, or only an ordinary litigation decision.”
NYRSC, 799 F.3d at 1132 (quotation marks omitted).
Because the question facing us in Watts was “whether the
agency acted in its sovereign lawmaking capacity or as a
litigant,” Watts had “no bearing” on the question addressed in
NYRSC—or in this appeal. NYRSC, 799 F.3d at 1132.
Regarding National Mining Ass’n, we noted that the
direct-review provision at issue in that case “did not
encompass orders issued by the agency, but rather a specific
adjudicatory body . . . that had no authority to issue rules.”
NYRSC, 799 F.3d at 1133. Because of the limited scope of the
power granted that body, National Mining Ass’n treated the
review provisions in the Black Lung Benefits Act as wholly
distinct from the review provisions at issue in NYRSC.
NYRSC, 799 F.3d at 1133.
SecurityPoint and Safe Extensions are also
distinguishable. In Safe Extensions, we were asked only to
determine whether an FAA advisory circular met the finality
requirement that we have read into section 46110(a) and
whether the agency decision must “be accompanied by a
record sufficient to permit judicial review” in order to qualify
as a reviewable order. See 509 F.3d at 598–600 (internal
quotation marks omitted). We held that the advisory circular
was final and that alone made it a reviewable order. Id.
SecurityPoint similarly involved an analysis of whether an
11
agency letter met section 46110(a)’s finality requirement. See
769 F.3d at 1187. Although SecurityPoint references the
APA definition of “order” at 5 U.S.C. § 551(6), it turned only
on the part of the APA definition of “order” requiring finality;
it did not address the APA’s further elaboration of
“order”—namely, that “order” excludes a rulemaking. See
SecurityPoint, 769 F.3d at 1187. But, as we recognized for
the analogous direct-review provision in NYRSC, the language
of section 46110(a) sets out an “order” requirement separate
from the APA and therefore is not restricted to the APA
definition of “order.” See NYSRC, 799 F.3d at 1132. Thus,
although the “normal default rule” may be that a challenge to
agency action begins in district court, Watts, 482 F.3d at 505
(quotation marks omitted), section 46110(a)’s direct-review
provision removes the Rule from the purview of the district
court and places it within our exclusive jurisdiction. Because
the district court did not err in concluding that it lacked
jurisdiction of NFB’s complaint, we deny NFB’s petition for a
writ of mandamus.
B.
NFB also argues that, even if the district court lacked
jurisdiction, we should still reach the merits of its appeal in
light of the district court’s transfer of the complaint to our court
as a petition for review. But NFB faces a significant
procedural hurdle. Section 46110(a) states that a petition for
review “must be filed not later than 60 days after the order is
issued.” Even assuming the filing of its complaint constituted
a filing of a petition for review, NFB’s petition was
untimely—the Final Rule issued on November 12, 2013 and
NFB filed its complaint on January 22, 2014—eleven days too
late. NFB’s only possible saving grace is that section
46110(a) includes a provision permitting our court to “allow
the petition to be filed after the 60th day” but “only if there are
12
reasonable grounds for not filing by the 60th day.” 49 U.S.C.
§ 46110(a). NFB claims that the uncertainty over whether
“order” in section 46110(a) includes the Final Rule provides
the reasonable grounds necessary to excuse their tardy filing.
We disagree.
As recently discussed in our opinion in Electronic Privacy
Information Center v. FAA (EPIC), No. 15-1075, 2016 WL
2640535 (D.C. Cir. May 10, 2016), we have “rarely found
‘reasonable grounds’ under section 46110(a).” Id. at *2. In
one of those rare instances—Safe Extensions—the FAA, after
issuing a circular to which the aviation industry objected,
informed the industry that it was planning to draft a revised
circular to respond to the industry’s concerns. 509 F.3d at
603. The agency did not, however, issue a revised circular.
Id. Because the agency’s own statements “could have
confused petitioner and others” about whether the order at
issue would be revised, we concluded that the petitioner’s late
filing could be excused. Id. at 603–04. Similarly, in
Paralyzed Veterans of America v. Civil Aeronautics Board, we
found reasonable grounds for an untimely filing under a
predecessor statute to section 46110(a). See 752 F.2d 694,
705 n.82 (D.C. Cir. 1985), rev’d on other grounds sub nom.
DOT v. Paralyzed Veterans of Am., 477 U.S. 597 (1986). The
Civil Aeronautics Board had promulgated a final rule but
“explicitly left its rulemaking docket open in order to receive
additional comments from the public as well as from the
Department of Justice.” Id. The petitioners were “[a]ware
that the rule might be undergoing modification, [were] unable
to predict how extensive any modification would be, [and
therefore] elected to wait until the regulation was in final form
before seeking review.” Id. We concluded that the
petitioners’ delay in challenging the final rule until after the
agency responded to comments “simply served properly to
13
exhaust petitioners’ administrative remedies, and to conserve
the resources of both the litigants and this court.” Id.
Nevertheless, we have generally declined to find
reasonable grounds for untimely filings under both section
46110(a) and analogous statutes. See Avia Dynamics, Inc. v.
FAA, 641 F.3d 515, 521 (D.C. Cir. 2011) (“[W]e have
heretofore found ‘reasonable grounds’ only in cases in which
the petitioner attributes the delay to more than simply
ignorance of the order.”). For example, in EPIC, we found
that ambiguity in an agency letter denying a petition for
rulemaking did not constitute reasonable grounds. EPIC,
2016 WL 2640535, at *2. There, we explained that, instead of
“assum[ing] the letter did not finally dismiss its petition,” the
petitioner “should have assumed the opposite and filed
protectively for judicial review within 60 days.” Id.
Investment Co. itself clarified that, “[i]f any doubt as to the
proper forum exists, careful counsel should file suit in both the
court of appeals and the district court or . . . bring suit only in
the court of appeals.” 551 F.2d at 1280. The Investment Co.
presumption was well-known—NFB therefore cannot cry
ignorance of the proper forum in seeking to excuse their
untimely challenge to the Final Rule.
NFB fails to meet our precise standard for reasonable
grounds. As our sister circuits have adeptly explained, a delay
caused by filing a petition or complaint in the wrong court by
itself is not a reasonable ground for failing to meet the statutory
sixty-day deadline. 5 See Corbett v. TSA, 767 F.3d 1171,
5
In Americopters, LLC v. FAA, 441 F.3d 726 (9th Cir. 2006),
which we cited favorably in EPIC, 2016 WL 2640535, at *2, the
Ninth Circuit explained that, under section 46110(a), “a delay
stemming from the filing of a petition or complaint with the wrong
court is not, in general, a reasonable ground for delay.”
Americopters, 441 F.3d at 734. Similarly, the Eleventh Circuit in
14
1178–79 (11th Cir. 2014); Americopters, LLC v. FAA, 441
F.3d 726, 734 (9th Cir. 2006). NFB’s justification for its
untimely filing is also clearly distinguishable from the rare
circumstances where we have previously found reasonable
grounds for delay. In Safe Extensions, the reasonable grounds
for delay was due to the agency’s misstatements about its
future actions. See 509 F.3d at 602–04. And in Paralyzed
Veterans, the reasonable grounds for delay was due to the
petitioners’ attempt to exhaust administrative remedies. 752
F.2d at 705 n.82. NFB had no such excuse—there was no
confusion caused by DOT’s actions or by a desire to further
exhaust administrative remedies. The only “confusion” here
was NFB’s own mistaken reading of section 46110(a). 6 Yet
we have made clear the appropriate recourse when a petitioner
is unsure of the proper forum for filing a challenge to a rule:
“If any doubt as to the proper forum exists, careful counsel
should file suit in both the court of appeals and the district
court or, since there would be no time bar to a proper action in
Corbett v. TSA, 767 F.3d 1171 (11th Cir. 2014), held that a
petitioner’s “dogged prosecution of his petition in the district court is
not a reasonable ground to excuse his failure to file his petition on
time in” the court of appeals. Id. at 1178–79.
6
NFB claims that reasonable grounds should be found in part
because of the strength of its statutory construction argument.
Pet’rs’ Br. 28 (“[T]he Blind Travelers filed when and where they did
because the applicable rules of statutory construction supported that
course, there was no controlling case law on the meaning of ‘order’
in § 46110(a) holding to the contrary, and Respondents themselves
labelled [sic] the Final Rule as a ‘rule’ and not an ‘order.’ ”). If the
scope of a direct-review statute is unclear, petitioners should be
mindful of the advice of Investment Co. and file in both venues.
551 F.2d at 1280. NFB did not heed this warning and their resultant
untimely filing will not be excused simply because they raised
colorable statutory construction arguments.
15
the district court, bring suit only in the court of appeals.”
Investment Co., 551 F.2d at 1280. NFB failed to follow that
path and we will not excuse that failure with the imprimatur of
reasonable grounds for delay.
For the foregoing reasons, we dismiss the petition for
review and deny the petition for a writ of mandamus.
So ordered.