United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 12, 2022 Decided March 3, 2023
No. 22-1004
IN RE: FLYERS RIGHTS EDUCATION FUND, INC., DOING
BUSINESS AS FLYERSRIGHTS.ORG AND PAUL HUDSON,
PETITIONERS
On Petition for Writ of Mandamus
Michael T. Kirkpatrick argued the cause for petitioners.
With him on the petition for a writ of mandamus and the reply
was Allison M. Zieve.
Martin Totaro, Attorney, U.S. Department of Justice,
argued the cause for respondents. On the opposition to the
petition for writ of mandamus was Mark B. Stern, Attorney.
Before: WALKER, Circuit Judge, and ROGERS and TATEL,
Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge WALKER.
WALKER, Circuit Judge: In 2006, American Airlines held
passengers on a plane for nine hours while the plane remained
on the tarmac in Austin, Texas. One of those passengers was
Kate Hanni. The next year, she founded a non-profit to lobby
the government to further regulate how commercial airlines
treat their customers. Hanni called her group Flyers Rights.
2
In this case, Flyers Rights and its current president have
taken aim at the small size of airline seats. In their view, small
seats slow emergency evacuations and cause medical problems
like blood clots. They have petitioned for a writ of mandamus
ordering the FAA “to commence rulemaking to establish
minimum seat size and spacing requirements for commercial
aircraft and to issue a final rule by a date certain.” Pet. Br. 23. 1
Mandamus petitioners must show “a clear and indisputable
right to relief.” In re Cheney, 406 F.3d 723, 729 (D.C. Cir.
2005) (cleaned up). 2 Flyers Rights says that the FAA
Reauthorization Act of 2018 gives it that right. The Act
provides:
Not later than 1 year after the date of enactment of this Act,
and after providing notice and an opportunity for
comment, the Administrator of the Federal Aviation
1
This is not Flyers Rights’ first rodeo — or their last. In 2015, it
petitioned the FAA to regulate airplane seat sizes. See Flyers Rights
Education Fund, Inc. v. Federal Aviation Administration, 864 F.3d
738, 741–42 (D.C. Cir. 2017). The FAA denied their petition. Id. at
742. In 2017, this court upheld the FAA’s decision in part. Id. at
741. On remand, the FAA denied their petition once more. See
Letter from Federal Aviation Administration to Paul Hudson (July 2,
2018), https://go.usa.gov/xzzAD (July 2018 Letter). Then in 2022,
after filing this mandamus petition, they again petitioned the FAA to
regulate airplane seat sizes. See FlyersRights.org, Petition for
Rulemaking 1, 26 (Oct. 5, 2022), https://perma.cc/ZVV9-RTL7.
2
In addition to establishing “that the agency has violated a crystal-
clear legal duty,” a “mandamus petitioner must show that it has no
other adequate means to attain the relief it desires.” In re: Center for
Biological Diversity, 53 F.4th 665, 670 (D.C. Cir. 2022) (cleaned
up). And even then “a court may grant mandamus relief only when
it also finds compelling equitable grounds.” Id. (cleaned up).
3
Administration shall issue regulations that establish
minimum dimensions for passenger seats on aircraft
operated by air carriers in interstate air transportation or
intrastate air transportation, including minimums for seat
pitch, width, and length, and that are necessary for the
safety of passengers.
49 U.S.C. § 42301 note (emphases added).
Under that provision’s best interpretation — though
perhaps not its only interpretation — the FAA must issue
regulations if they satisfy those two bolded criteria. Id. First,
the regulations must “establish minimum dimensions for
passenger seats on aircraft.” Id. Second, the regulations must
also be “necessary for the safety of passengers.” Id.
That interpretation follows from the provision’s use of the
conjunctive “and.” The FAA must issue regulations that
mandate minimum seat sizes “and that are necessary for the
safety of passengers.” Id. (emphasis added). So unless seat-
size regulations are “necessary for the safety of passengers,”
the FAA Reauthorization Act neither requires nor even
authorizes the FAA to “establish minimum dimensions for
passenger seats on aircraft.” See Loving v. IRS, 742 F.3d 1013,
1019 (D.C. Cir. 2014) (“the statute uses the conjunctive ‘and’
— not the disjunctive ‘or’ — when listing the various
requirements, a strong indication that Congress did not intend
the requirements as alternatives”); see also Oral Arg. Tr. 5
(Judge Tatel: “Suppose I asked you to buy me a car that is fast
and red. Would you get me a car that’s just fast without regard
to color?”); Antonin Scalia & Bryan A. Garner, Reading Law
116 (“And joins a conjunctive list”); cf. id. at 142 (grammar has
a “preference for that in a restrictive clause and a comma plus
which in a nonrestrictive clause”).
4
The problem for Flyers Rights is that it has not made a
“‘clear and indisputable’” showing, In re Cheney, 406 F.3d at
729, that any seat-size regulations “are necessary for the safety
of passengers,” 49 U.S.C. § 42301 note. 3
Start with emergency evacuations. Flyers Rights says that
small seats materially slow the exit of passengers in an
emergency. But that is not “‘clear and indisputable.’” In re
Cheney, 406 F.3d at 729. The FAA says it has found no
compelling evidence of it so far. Resp. Br. 6-7. And Flyers
Rights has brought none to our attention.
It’s not as if the FAA is refusing to look for that evidence.
It has run emergency-exit tests, and it has reviewed nearly 300
real-world exits. But each time, there is little to “no discernable
difference in evacuation times due to seat dimensions.” Resp.
Br. Exhibit B 44. According to the FAA, that’s in part because
“the time it takes to stand up from one’s seat . . . is less than the
time it will take to get the emergency exits opened and
functional and for the line that begins forming in the aisle to
clear.” Letter from FAA to Paul Hudson at 2 (July 2, 2018),
https://go.usa.gov/xzzAD. 4
3
The word “necessary” often means “absolutely needed:
REQUIRED.” Necessary (def. 1), Merriam-Webster (2023); see
also Vorchheimer v. Philadelphia Owners Association, 903 F.3d
100, 105 (3d Cir. 2018) (“necessary” often means
“required, indispensable, essential” (cleaned up)). But here, even if
“necessary” merely means something like “sufficiently important,”
Flyers Rights would still need to show what it has not — at least
some material connection between seat-size regulations and
passenger safety.
4
That finding will surprise no one who has waited for the center aisle
to clear while standing in the back of an airplane.
5
As for seat sizes and blood clots, Flyers Rights has again
shown no “‘clear and indisputable’” connection. In re Cheney,
406 F.3d at 729. Evidence before the FAA in 2017 suggested
that blood clots on flights are rare and are “not caused by seat
size or spacing.” Flyers Rights Education Fund Inc. v. FAA,
864 F.3d 738, 749 (D.C. Cir. 2017). And although small seats
can certainly cause soreness and stiffness, those conditions are
not safety hazards; rather they are “commonplace, temporary,
and non-life-threatening discomforts.” Id.
To be sure, many airline seats are uncomfortably small.
That is why some passengers pay for wider seats and extra
legroom. But it is not “‘clear and indisputable’” that airline
seats have become dangerously small. In re Cheney, 406 F.3d
at 729. Unless they are dangerously small, seat-size
regulations are not “necessary for the safety of passengers.” 49
U.S.C. § 42301 note. And until they are “necessary,” the FAA
cannot comply with Congress’s order to promulgate seat-size
regulations “necessary for the safety of passengers.” Id.
To be clear about the limits of our holding, evidence might
one day show that seat-size regulations are “necessary for the
safety of passengers.” Id. The FAA has requested public
comments and is currently reviewing them. In addition, Flyers
Rights recently petitioned the FAA to promulgate seat-size
regulations, and in that proceeding, new evidence might arise.
See FlyersRights.org, Petition for Rulemaking 1, 26 (Oct. 5,
2022), https://perma.cc/ZVV9-RTL7. 5
5
Even if seat-size regulations are not yet necessary, perhaps airlines
will make seat sizes so small in the future that they slow emergency
evacuations or otherwise endanger passengers. If so, regulations
could then be “necessary.” 49 U.S.C. § 42301 note.
6
Today we merely hold that Flyers Rights lacks a “clear and
indisputable right to relief.” In re Cheney, 406 F.3d at 729
(cleaned up). That’s because the FAA Reauthorization Act
speaks only of seat-size regulations that “are necessary for the
safety of passengers,” and on the record before us, the necessity
of those regulations is neither clear nor indisputable. 49 U.S.C.
§ 42301 note; see also In re National Nurses United, 47 F.4th
746, 752-54 (D.C. Cir. 2022) (mandamus is not appropriate
unless the agency has violated a clear legal duty).
* * *
The petition is therefore denied.
So ordered.