United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 7, 2018 Decided November 27, 2018
No. 17-1272
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
Consolidated with 18-5016
On Petitions for Writ of Mandamus of Transfer Order of the
United States District Court for the District of Columbia and
for Review of Agency Action by the United States
Department of Transportation
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, 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, Trial Attorney.
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Before: GRIFFITH, Circuit Judge, and EDWARDS and
RANDOLPH, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: 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
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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.
I. BACKGROUND
A. The Reporting Rule and the Extension Rule
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
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“[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
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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.
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B. The Statutory Authorities Cited by DOT in Support of the
Amendments to 14 C.F.R. § 234.6
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) (“The
Secretary may require an air carrier . . . to file annual, monthly,
periodical, and special reports with the Secretary in the form
and way prescribed by the Secretary . . . .”). And § 41709
authorizes the Secretary to specify the records that air carriers
must keep. 49 U.S.C. § 41709(a) (“The Secretary of
Transportation shall prescribe the form of records to be kept by
an air carrier . . . and the time period during which the records
shall be kept.”). 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.
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C. Paralyzed Veterans’ Challenge to the Extension Rule
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 those provisions supports the
Extension Rule as a substantive matter. Moreover, DOT
concedes that § 329 does not appear in Part A. The Petitioners
thus argued before the District Court that the Extension Rule
was not “issued under” Part A and the strictures of 49 U.S.C.
§ 46110(a) did not apply to their lawsuit. The District Court
found, however, that “[the Petitioners] do not seriously dispute
that the Extension Rule’s citation to §§ 41101 and 41701 was
a mistake.” Paralyzed Veterans of Am., 286 F. Supp. 3d at 119.
Nor do the parties seriously disagree with the District Court’s
finding that “the Extension Rule could have been—and indeed,
likely should have been—issued under [the] statutory authority
[of §§ 41708 and 41709] that would have triggered direct
review [in the court of appeals pursuant to 49 U.S.C.
§ 46110(a)].” Id. at 118.
After extensive review of the parties’ respective positions,
careful analysis of the record, and consideration of the
applicable case law, the District Court rejected the Petitioners’
claim. The court held that, “where, as here, the record suggests
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that a rule mistakenly cites an inapposite statutory authority
instead of some other, clearly applicable authority, and where
there is no evidence (or even allegation) of bad-faith conduct
on the part of the promulgating agency, the Court may treat the
rule as issued ‘under’ the mistakenly omitted authority for
purposes of ascertaining its jurisdiction under a direct-review
statute.” Paralyzed Veterans of Am., 286 F. Supp. 3d at 119.
The District Court concluded that because the Extension
Rule was issued under Part A authority within the meaning of
§ 46110, it could not exercise jurisdiction over this action. Id.
at 120. The court accordingly transferred the case “in the
interests of justice” to this court pursuant to 28 U.S.C. § 1631.
Id. The court also denied without prejudice the Petitioners’
motion for a stay, DOT’s motion to dismiss for lack of subject-
matter jurisdiction, and the Petitioners’ motion for summary
judgment.
Following the District Court’s transfer order, the
Petitioners’ complaint was docketed by this court as a petition
for review. The Petitioners then noticed an appeal of the
District Court’s transfer decision, which this court construed as
a petition for a writ of mandamus. On January 30, 2018, this
court acted on its own motion to consolidate the two petitions.
This court now faces two issues: First, whether, pursuant
to 49 U.S.C. § 46110, original and exclusive jurisdiction to hear
this case lies with the courts of appeals because the Extension
Rule was issued at least in part under statutory authority found
in title 49, subtitle VII, part A. Second, if review of the
Extension Rule was required to be sought in accordance with
§ 46110, whether the Petitioners have shown “reasonable
grounds” for failing to file their petition for review within 60
days after the issuance of the Extension Rule.
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II. ANALYSIS
A. Standard of Review
The District Court transferred the case to this court “in the
interest of justice.” See 28 U.S.C. § 1631. We review de novo
the lower court’s determination that it lacks subject matter
jurisdiction. Tootle v. Sec’y of Navy, 446 F.3d 167, 173 (D.C.
Cir. 2006).
B. The District Court Properly Transferred the Case
Pursuant to 28 U.S.C. § 1631
The Petitioners contest, through a writ of mandamus, the
District Court’s order of transfer to this court. The writ of
mandamus is an “extraordinary remedy, to be reserved for
extraordinary situations.” In re U.S. Dep’t of Def., 848 F.2d
232, 234–35 (D.C. Cir. 1988) (quoting Gulfstream Aerospace
Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988)).
Because we reject the Petitioners’ claim that jurisdiction over
this matter properly lies in the District Court, there is no ground
for this court to issue a writ of mandamus.
Section 46110(a) provides for direct review in the court of
appeals when the Secretary of Transportation issues an order
under “Part A” of Subtitle VII. The term “order” includes
“rules” for purposes of § 46110. Nat’l Fed’n of the Blind v. U.S.
Dep’t of Transp., 827 F.3d 51, 55–57 (D.C. Cir. 2016). And
Subtitle VII broadly covers “aviation programs,” while “Part
A” generally covers “Air Commerce and Safety.” See Cmtys.
Against Runway Expansion, Inc. v. FAA, 355 F.3d 678, 683
(D.C. Cir. 2004). Therefore, the Extension Rule obviously fits
within the compass of Part A of Subtitle VII. And when DOT
promulgated the Extension Rule, it cited Part A provisions as
authority to support the rule; however, as indicated above, the
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Department mistakenly cited §§ 41101 and 41701, instead of
§§ 41708 and 41709.
Furthermore, the Petitioners are correct in pointing out that
the two Part A statutory provisions cited by DOT – 49 U.S.C.
§§ 41101 and 41701 – plainly do not support the Extension
Rule. DOT also cited 49 C.F.R. 1.27(n) as a potential source of
authority. Paralyzed Veterans of Am., 286 F. Supp. 3d at 115.
However, the District Court correctly rejected this claim
because this provision merely delegates authority to the
General Counsel to issue the Extension Rule on behalf of the
Secretary. Id. Nevertheless, we find no merit in the Petitioners’
claim that the direct-review provision of 49 U.S.C. § 46110(a)
has no application in this case. The problem with the
Petitioners’ argument is that it rests on the implicit assumption
that they were misled by DOT’s failure to cite §§ 41708 and
41709 in support of the Extension Rule. The record does not
support this assumption.
First, although DOT cited the wrong provisions in Part A
when it promulgated the disputed rule, the Petitioners were on
notice that the Department meant to rely on Part A. As
explained above, Part A authorizes DOT’s regulation of air
commerce, including the agency’s imposition of recordkeeping
and reporting requirements. In addition, the Extension Rule –
which amends 14 C.F.R. § 234.6 – expressly invokes Part A
authority. And Part A provisions do, in fact, provide clearly
applicable statutory authority for the Extension Rule.
Paralyzed Veterans of Am., 286 F. Supp. 3d at 118–19.
Second, the Petitioners acknowledge that prior to the
adoption of the Reporting Rule, the citations of authority for 14
C.F.R. § 234.6 read: “49 U.S.C. 329 and Sections 41708 and
41709.” See 14 C.F.R. pt. 234 (2011); Pets.’ Br. 9–10. These
statutory citations were mistakenly changed in 2011 when
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DOT issued the Notice of Proposed Rulemaking for the
Reporting Rule. As the District Court explained:
At oral argument, the Department suggested that the
notice of proposed rulemaking had actually meant to
expand part 234’s authority citation—that is, to cite
chapters 411 and 417 of title 49. This mistake was then
compounded by the drafters of the final Reporting Rule,
who “corrected” the citation not by changing the phrase
“41101 and 41701” to “411 and 417,” but rather by
changing the word “chapters” to “sections.” In light of
the foregoing review of the Reporting Rule’s drafting
history, this explanation for the change—the only one
offered by either party—“makes perfect sense.” Am.
Petroleum Inst., 714 F.3d at 1333. Why else would the
Department have changed the citation from clearly
applicable statutory authority (§§ 41708 and 41709) to
clearly inapposite authority (§§ 41101 and 41701)?
Paralyzed Veterans of Am., 286 F. Supp. 3d at 118–19. The
Extension Rule’s citation to §§ 41101 and 41701 was simply a
mistake, but not one that misled the Petitioners. See id. at 119.
The Petitioners do not seriously dispute any of this.
Finally, the Petitioners’ complaint pointedly cites
§§ 41708 and 41709 as the relevant statutory authorities for the
Extension Rule:
15. Pursuant to 49 U.S.C. §§ 329, 41708, and 41709,
the Secretary of Transportation has the authority to
require air carriers to collect and report information
related to transportation that the Secretary decides will
contribute to the improvement of the transportation
system.
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16. In accordance with this legislative authority, the
Secretary of Transportation has adopted regulations for
the collection and reporting of data regarding
mishandled wheelchairs and scooters that are entrusted
to domestic airlines by disabled passengers and
transported in aircraft cargo compartments. 14 C.F.R.
§ 234.6.
Joint Appendix 10. In light of this, the Petitioners are hard
pressed to contend that they were somehow misled by DOT’s
mistaken citations to §§ 41101 and 41701. See 5 U.S.C.
§ 706(2) (providing that “due account shall be taken of the rule
of prejudicial error” in review of agency actions).
Because §§ 41708 and 41709 indisputably provide
authority for the Extension Rule, exclusive jurisdiction over
this action lies with the courts of appeals pursuant to
§ 46110(a).
C. The Petitioners Had No “Reasonable Grounds” for Their
Untimely Petition for Review
There is no doubt that the petition for review in this case
was filed more than 60 days after the issuance of the Extension
Rule. It is therefore untimely under § 46110(a) unless there are
reasonable grounds justifying the Petitioners’ failure to file by
the 60th day. On the record before us, we find that the
Petitioners have offered no reasonable grounds for the untimely
filing. We are therefore constrained to dismiss the petition for
review.
“This court ‘rarely [finds] reasonable grounds under
section 46110(a).’” Citizens Ass’n of Georgetown v. FAA, 896
F.3d 425, 435 (D.C. Cir. 2018) (quoting Elec. Privacy Info. Ctr.
v. FAA, 821 F.3d 39, 43 (D.C. Cir. 2016)). And we have made
13
it clear that “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.” Nat’l Fed’n of the
Blind, 827 F.3d 51, 58 (D.C. Cir. 2016). Moreover, the few
instances in which we have found reasonable grounds are
easily distinguishable from the circumstances in this case.
For example, in City of Phoenix v. Huerta, 869 F.3d 963
(D.C. Cir. 2017), we excused an untimely petition for review
because the Federal Aviation Administration (“FAA”) actively
represented to the petitioners in that case that the agency’s
decision-making process had not yet consummated. Id. at 969–
70. In at least two public meetings and three letters, agency
officials assured the petitioners that their concerns regarding
contested flight plans and related noise problems were being
evaluated. Id. at 970. The FAA even reconvened a working
group that had modified the flight plans. Id. Given this
situation, we declined to “punish the petitioners for treating
litigation as a last rather than a first resort when an agency
behave[d] as the FAA did[.]” Id. There are no similar
circumstances in this case. Paralyzed Veterans had some
interactions with two congressional subcommittees, but
attempts to communicate with officials at DOT were futile. See
Addendum to Pets.’ Br. at 29–40. And there is nothing in the
record to indicate that the Petitioners here received any credible
assurances from either legislators or DOT officials that the
issuance of the Extension Rule would be delayed, or that the
rule would be revised or withdrawn.
The circumstances in this case are also distinguishable
from the situation that we considered in Paralyzed Veterans of
Am. v. C.A.B., 752 F.2d 694 (D.C. Cir. 1985), rev’d on other
grounds, Dep’t of Transp. v. Paralyzed Veterans of Am., 477
U.S. 597 (1986). In that case, we found that the agency had
continued to accept comments about the rule at issue. Id. at 705
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n.82 (“Aware that the rule might be undergoing modification,
and unable to predict how extensive any modification would
be, petitioners elected to wait until the regulation was in final
form before seeking review.”). We therefore agreed that it was
prudent for the petitioners in that case “to exhaust [their]
administrative remedies, and to conserve the resources of both
the litigants and this court.” Id. The situation in this case is
quite different because DOT gave no indication to the
Petitioners that there was even a remote possibility that the
Extension Rule would be revised or rescinded. The Petitioners
therefore had no legitimate expectation that their concerns
would be addressed.
In cases of the sort presented here, a claim of “reasonable
grounds” to justify an untimely filing under § 46110 must be
supported by evidence showing that petitioners had reasonable
bases for believing that agency officials would address the
concerns at issue. See City of Phoenix, 869 F.3d at 970 (quoting
Safe Extensions, Inc. v. FAA, 509 F.3d 593, 596 (D.C. Cir.
2007)). In Safe Extensions, for example, the FAA actively
misled the petitioners into believing that the agency would
issue a new order that would afford redress. See 509 F.3d at
602–04. Moreover, since the FAA specifically encouraged the
petitioners to wait for further agency action, it was reasonable
for the petitioners to delay in filing a petition for review. Id. at
603–04. Here, the Petitioners have not shown that DOT misled
them in any way about the Extension Rule’s finality. In fact,
the Petitioners admit that DOT officials never “substantively
responded” to their requests. Pets.’ Br. 41–42.
In these circumstances, the law of the circuit requires
dismissal of this case. See, e.g., Citizens Ass’n of Georgetown,
896 F.3d at 435; Taylor v. Huerta, 856 F.3d 1089, 1093–94
(D.C. Cir. 2017); Nat’l Fed’n of the Blind, 827 F.3d at 57-58;
Avia Dynamics, Inc. v. FAA, 641 F.3d 515, 521 (D.C. Cir.
15
2011). Our sister circuits have adhered to the same legal
principles enunciated here. See, e.g., Skydive Myrtle Beach v.
Horry Cnty. Dep’t of Airports, 735 F. App’x 810, 815 (4th Cir.
2018) (per curiam); Tulsa Airports Improvement Trust v. FAA,
839 F.3d 945, 950 (10th Cir. 2016); Corbett v. Transp. Sec.
Admin., 767 F.3d 1171, 1178–79 (11th Cir. 2014);
Americopters, LLC v. FAA, 441 F.3d 726, 732–34 (9th Cir.
2006). Since the Department did nothing to create uncertainty
regarding the Extension Rule’s finality, the Petitioners were
required to meet the statutory 60-day filing deadline. They had
good reason to know that direct review in the court of appeals
was required pursuant to § 46110. And if the Petitioners had
any doubt, they should have filed suit within sixty days “in both
the court of appeals and the district court.” Nat’l Fed’n of the
Blind, 827 F.3d at 58 (citation omitted).
III. CONCLUSION
For the reasons set forth above, we deny the Petitioners’
request for a writ of mandamus. 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.
So ordered.