Electronic Privacy Information Center v. Federal Aviation Administration , 821 F.3d 39 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 10, 2016 Decided May 10, 2016
No. 15-1075
ELECTRONIC PRIVACY INFORMATION CENTER,
PETITIONER
v.
FEDERAL AVIATION ADMINISTRATION, ET AL.,
RESPONDENTS
On Petition for Review of an Order
of the Federal Aviation Administration
Marc Rotenberg argued the cause for the petitioner.
Alan Butler and Khaliah Barnes 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, and
Michael S. Raab, Attorney were with her on brief.
Before: HENDERSON, ROGERS and SRINIVASAN,
Circuit Judges.
Opinion for the Court filed by Circuit Judge
HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge: Petitioner
Electronic Privacy Information Center (EPIC) seeks review of
the decision of the Federal Aviation Administration (FAA)
not to promulgate certain regulations. EPIC challenges both
the FAA’s dismissal of its petition for rulemaking and the
FAA’s omission of privacy provisions in the notice of
proposed rulemaking (NPRM). Regarding its first challenge,
EPIC is time-barred; on the second, EPIC’s challenge is
premature. Accordingly, we dismiss EPIC’s petition for
review.
I.
On February 14, 2012 the Congress enacted the FAA
Modernization and Reform Act of 2012 (Act), Pub. L. No.
112-95, 126 Stat. 11 (codified at 49 U.S.C. § 40101 note).
The Act was enacted to regulate, inter alia, “unmanned
aircraft”—i.e., drones.1 Specifically, the Act directs the FAA
to develop, within 270 days of enactment, “a comprehensive
plan to safely accelerate the integration of civil unmanned
aircraft systems into the national airspace system,” including
regulations to “implement the recommendations of the plan.”
Act § 332(a)(1), (b)(2). The Act prescribes certain safety
considerations the plan must contain, including, e.g.,
provisions to “ensure that any civil unmanned aircraft system
includes a sense and avoid capability” and to implement “the
best methods to enhance the technologies and subsystems
necessary to achieve the safe and routine operation of civil
unmanned aircraft systems.” Id. § 332(a)(2). The Act is
silent as to any privacy considerations.
1
The Act defines “unmanned aircraft” as “an aircraft that is
operated without the possibility of direct human intervention from
within or on the aircraft.” Act § 331(8).
3
On February 24, 2012 EPIC petitioned the FAA to
promulgate privacy-specific drone regulations. Thirty-three
months later, on November 26, 2014, the FAA denied the
petition, stating that it was “dismissing [EPIC’s] petition for
rulemaking.” Although a petition for review of an FAA order
“must be filed not later than 60 days after the order is issued,”
49 U.S.C. § 46110(a), EPIC did not file its petition until
March 31, 2015—125 days after the dismissal.2
II.
The FAA ended its November 26, 2014 letter denying
EPIC’s petition by “dismissing [the] petition for rulemaking
in accordance with 14 CFR § 11.73.” Letter from Lirio Liu,
2
The FAA does not question EPIC’s standing but we have an
independent duty to satisfy ourselves of our Article III jurisdiction.
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93 (1998).
EPIC brought suit on its own behalf; therefore we assess its
standing under the two-pronged organizational standing test,
“ask[ing], first, whether” the agency’s action or omission to act
“injured the [organization’s] interest” and second, “whether the
[organization] used its resources to counteract that harm.” Equal
Rights Ctr. v. Post Props., Inc., 633 F.3d 1136, 1140 (D.C. Cir.
2011).
Nonetheless, we “have leeway ‘to choose among threshold
grounds for denying audience to a case on the merits’ because
‘jurisdiction is vital only if the court proposes to issue a judgment
on the merits.’ ” Nat’l Ass’n of Clean Water Agencies v. EPA, 734
F.3d 1115, 1161 (D.C. Cir. 2013) (quoting Sinochem Int’l Co. v.
Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007)). Because
EPIC’s organizational standing vel non involves a fairly “arduous
inquiry” and because there is an alternative and “straightforward”
threshold ground for dismissal, see Ruhrgas AG v. Marathon Oil
Co., 526 U.S. 574, 587–88 (1999), we may proceed to the
alternative ground.
4
Dir., Office of Rulemaking, FAA, to Marc Rotenberg, Exec.
Dir., EPIC at 2 (FAA Letter). Despite the FAA’s explicit
dismissal, EPIC waited over 60 days to petition for review.
EPIC now makes two arguments to excuse its tardiness. First,
it contends that “reasonable grounds” justify its untimely
petition. 49 U.S.C § 46110(a) (“court may allow the petition
to be filed after the 60th day only if there are reasonable
grounds”). In the alternative, EPIC argues that the FAA’s
February 23, 2015 NPRM constituted, in effect, the dismissal
of its petition, triggering the 60-day clock. We find neither
argument availing.
Because EPIC’s arguments turn on the alleged
inconsistencies in the FAA’s letter, exposition thereof is
necessary. FAA regulations require the Agency to respond to
a “petition for rulemaking in one of . . . [five] ways,” 14
C.F.R. § 11.73, two of which are relevant here. First, if the
FAA has “begun a rulemaking project in the subject area of
[the] petition,” it “will consider [the] comments and
arguments for a rule change as part of that project. [FAA]
will not treat [the] petition as a separate action.” Id.§ 11.73(c). Second, if the FAA “determine[s] that the
issues . . . identif[ied] in [the] petition may have merit, but do
not address an immediate safety concern or cannot be
addressed because of other priorities and resource constraints,
[it] may dismiss [the] petition. . . . [Petitioners’] comments
and arguments for a rule change will be placed in a database,
which [the FAA] will examine when . . . consider[ing] future
rulemaking.” Id. § 11.73(e).
Read against the backdrop of its regulations, the FAA’s
letter does lack clarity. Although the letter contains language
consistent with a section 11.73(e) dismissal, see FAA Letter
at 1 (“[W]e have determined that the issue you have raised is
not an immediate safety concern.”), another statement more
5
closely aligns it with section 11.73(c), see id. at 1 (“[T]he
FAA has begun a rulemaking addressing civil operation of
small unmanned aircraft systems in the national airspace
system. We will consider your comments and argument as
part of that project.”). EPIC argues that we should construe
the ambiguity against the Agency and that it either provides
reasonable grounds for delay—assuming that we believe the
letter to represent “a final order,” see Vill. of Bensenville v.
FAA, 457 F.3d 52, 69 (D.C. Cir. 2006) (jurisdiction under 49
U.S.C. § 46110 is contingent on “a final order”)—or
establishes that the Agency’s letter indicated it would
consider EPIC’s petition consistent with section 11.73(c). We
need not determine whether the letter constitutes a final
order/dismissal sufficient to start the 60-day clock because,
under either argument, EPIC cannot prevail.
Regarding “reasonable grounds for delay,” 49 U.S.C.
§ 46110(a), EPIC alleges that the FAA letter, if final, is at
least “misleading.” Pet’r Reply Br. 12. We have rarely found
“reasonable grounds” under section 46110(a) and, when we
most recently so found, the circumstances were plainly
distinguishable. See Safe Extensions, Inc. v. FAA, 509 F.3d
593 (D.C. Cir. 2007). There, the FAA affirmatively
misrepresented to the petitioner that the challenged order was
to be revised. See id. at 603 (“[W]hen [petitioner’s President]
expressed [his] concerns to [the FAA] about how AC–42E
dealt with [adjustable products], the FAA responded that [he]
should wait until AC–42F comes out because the FAA was
currently revising AC–42E.” (alteration in original) (internal
quotations omitted)). Because the Agency told the petitioner
“to basically ignore” the order inasmuch as it “would be
eliminated and replaced with” another, we reviewed its
otherwise untimely challenge when the order was not in fact
revised. Id. (internal quotations omitted). Moreover, EPIC’s
argument fails even under its preferred authority, a Ninth
6
Circuit decision. Americopters, LLC v. FAA, 441 F.3d 726(9th Cir. 2006). In Americopters, the Ninth Circuit held that
“an attempt to exhaust the wrong remedy is not” reasonable
grounds for delay; so too with “procedural missteps . . . based
on a misapprehension of the law.” Id. at 734. Here—
assuming the FAA’s letter constitutes a final order—EPIC’s
error was a slightly different kind of procedural misstep. It
assumed the letter did not finally dismiss its petition; instead,
it should have assumed the opposite and filed protectively for
judicial review within 60 days. With its alternative attempt to
petition for review of the February 23, 2015 NPRM, EPIC
“attempt[s] to exhaust the wrong remedy.” Id. The NPRM
stated that “privacy concerns have been raised about [drone]
operations. . . . these issues are beyond the scope of th[e]
rulemaking.” See Operation and Certification of Small
Unmanned Aircraft Systems, 80 Fed. Reg. 9544, 9552 (Feb.
23, 2015). But a challenge mounted under 49 U.S.C. § 46110requires a “final order.” See Vill. of Bensenville, 457 F.3d at
69. To be “final,” the order “must mark the consummation of
the agency's decisionmaking process” and “be one by which
rights or obligations have been determined, or from which
legal consequences will flow.” Bennett v. Spear, 520 U.S.
154, 177–78 (1997) (internal quotations omitted); see also
Ass’n of Flight Attendants-CWA, AFL-CIO v. Huerta, 785
F.3d 710, 713 (D.C. Cir. 2015) (applying section 46110
review). Because an NPRM neither marks the
“consummation of the agency’s decisionmaking process” nor
determines “rights or obligations” or imposes “legal
consequences,” it is unreviewable. In re Murray Energy
Corp., 788 F.3d 330, 334 (D.C. Cir. 2015) (quoting Bennett,
520 U.S. at 177–78).
In addition, EPIC contends that the FAA’s conclusion
that privacy is beyond the scope of the NPRM is itself a final
reviewable “order,” relying on Agape Church, Inc. v. FCC,
7
738 F.3d 397 (D.C. Cir. 2013). But Agape Church involved
review of a final rule for consistency with an NPRM, id. at
400–02, not the non-finality of an NPRM. EPIC seems to
contend that, because an agency’s final rule must be a “logical
outgrowth of its [NPRM],” id. at 411 (quoting Covad
Commc’ns Co. v. FCC, 450 F.3d 528, 548 (D.C. Cir. 2006)),
and because the FAA expressed its intent to omit privacy
considerations in its final rule, EPIC need not wait for the
latter. In so contending, EPIC asks “us to do something
that . . . we have never done before.” Murray Energy, 788
F.3d at 333. To allow review of an agency’s intent vel non—
as expressed only in an NPRM—to address a particular matter
in a final rule would upset our settled law that “[w]e do not
have authority to review proposed agency rules.” Id. at 334.
For the foregoing reasons, EPIC’s petition for review is
dismissed.
So ordered.