Association of Flight Attendan v. Michael Huerta

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 10, 2014 Decided May 8, 2015
No. 13-1316
ASSOCIATION OF FLIGHT ATTENDANTS-CWA, AFL-CIO,
PETITIONER
v.
MICHAEL P. HUERTA AND FEDERAL AVIATION
ADMINISTRATION,
RESPONDENTS
On Petition for Review from the
Federal Aviation Administration
Amanda C. Dure argued the cause for petitioner. With
her on the briefs was Michael J. Pangia.
Jeffrey E. Sandberg, Attorney, U.S. Department of
Justice, argued the cause for respondents. With him on the
brief were Stuart F. Delery, Assistant Attorney General,
Ronald C. Machen, Jr., U.S. Attorney at the time the brief
was filed, and Mark B. Stern, Attorney.
Before: ROGERS, Circuit Judge, BROWN, Circuit Judge,
and EDWARDS, Senior Circuit Judge.
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EDWARDS, Senior Circuit Judge: On October 31, 2013,
the Federal Aviation Administration (“FAA”) issued FAA
Notice N8900.240, Expanded Use of Passenger Portable
Electronic Devices (“Notice N8900.240” or “the Notice”).
The Notice is an internal guidance document issued to FAA
aviation safety inspectors concerning the use and stowage of
portable electronic devices (“PEDs”) aboard commercial and
other aircraft. On December 30, 2013, the Association of
Flight Attendants (“AFA”) filed a petition for review with this
court challenging Notice N8900.240 on the ground that “the
FAA impermissibly and substantially altered and effectively
amended 14 C.F.R. § 121.589, the regulation that pertains to
carry-on baggage on an aircraft,” without adhering to the
notice and comment requirements of the Administrative
Procedure Act (“APA”), 5 U.S.C. § 553. Petitioner’s Br. 5.
The AFA seeks to invoke this court’s jurisdiction under
49 U.S.C. § 46110(a), which provides that “a person
disclosing a substantial interest in an order issued by” the
FAA “may apply for review” in this court “not later than 60
days after the order is issued.” The FAA claims that this court
lacks jurisdiction over the petition for review because the
Notice does not constitute final agency action. See, e.g., Vill.
of Bensenville v. FAA, 457 F.3d 52, 68 (D.C. Cir. 2006)
(noting that jurisdiction under 49 U.S.C. § 46110(a) is limited
to review of “final order[s]”). We agree.
In order for an agency action to be viewed as “final
agency action” it “must mark the ‘consummation’ of the
agency’s decisionmaking process,” rather than being
“tentative or interlocutory.” Bennett v. Spear, 520 U.S. 154,
177–78 (1997) (citation omitted). And it must determine
“rights or obligations,” or produce “legal consequences.” Id.
at 178 (internal quotation marks omitted). Notice N8900.240
does not satisfy these requirements. The Notice is nothing
3
more than an internal guidance document that does not carry
the “force and effect of law.” Perez v. Mortgage Bankers
Ass’n, 135 S. Ct. 1199, 1204 (2015). Therefore, the Notice
does not reflect final agency action.
It does not matter that Notice N8900.240 may reflect a
change in the FAA’s interpretation of the regulation embodied
in 14 C.F.R. § 121.589. In Perez, the Supreme Court
explained that:
Not all “rules” must be issued through the notice-
and-comment process. Section 4(b)(A) of the APA
provides that, unless another statute states otherwise, the
notice-and-comment requirement “does not apply” to
“interpretative rules, general statements of policy, or
rules of agency organization, procedure, or practice.” 5
U.S.C. § 553(b)(A). . . . [T]he critical feature of
interpretive rules is that they are “issued by an agency to
advise the public of the agency’s construction of the
statutes and rules which it administers.” The absence of a
notice-and-comment obligation makes the process of
issuing interpretive rules comparatively easier for
agencies than issuing legislative rules. But that
convenience comes at a price: Interpretive rules “do not
have the force and effect of law and are not accorded that
weight in the adjudicatory process.”
Id. at 1203–04 (citations omitted). As Perez makes clear, the
APA “permit[s] agencies to promulgate freely [interpretive]
rules – whether or not they are consistent with earlier
interpretations” of the agency’s regulations. Id. at 1207; see
also Hudson v. FAA, 192 F.3d 1031, 1035–36 (D.C. Cir.
1999) (holding that an agency may change its policy
statements as it sees fit without following APA notice and
comment procedures). Such agency interpretations and policy
4
statements do not “amend” the regulations to which they
refer. As noted in Perez, “[o]ne would not normally say that a
court ‘amends’ a statute when it interprets its text. So too can
an agency ‘interpret’ a regulation without ‘effectively
amend[ing]’ the underlying source of law.” Id. at 1208
(alteration in original).
On the record before us, it is clear that Notice N8900.240
does not purport to amend any FAA regulation, and it does
not otherwise carry the force of law. FAA regulations prohibit
the use of most PEDs during flight unless an airline
determines that they will not interfere with the aircraft’s
navigation or communications. 14 C.F.R. § 121.306. The
FAA has long advised that PED use be allowed during the
main portion of flights, but barred during takeoff and landing.
Although the agency’s recommendations are nonbinding,
most airlines followed this approach. In 2012, the FAA
reconsidered its stance. The agency created a streamlined
procedure for airlines to use to determine whether expanded
PED use poses a safety risk. Although the FAA’s guidance on
PEDs remained nonbinding, many airlines have adopted new
procedures that permit passengers to use PEDs for the entire
duration of their flights.
Notice N8900.240 does not alter this regulatory regime.
The Notice merely provides guidance to aviation safety
inspectors who enforce FAA regulations. Moreover, Notice
N8900.240 creates no rights or obligations, and generates no
legal consequences. No airline need alter any policy in
response to it. The Notice does not eliminate the discretion of
safety inspectors or require that any particular carry-on
baggage program be approved or denied. And the Notice does
not contradict existing regulations regarding stowage of carry-
on baggage.
5
In sum, because the disputed Notice does not determine
any rights or obligations, or produce legal consequences, it
does not reflect “final action” by the FAA. Therefore, this
court has no jurisdiction to consider AFA’s challenge to
Notice N8900.240.
I. BACKGROUND
The FAA requires airlines to have an agency-approved
carry-on baggage program to control the size and amount of
luggage that passengers can bring aboard their planes. 14
C.F.R. § 121.589(a). Passenger aircraft cannot take off unless
each article of baggage is stowed in an appropriate
compartment or under a seat. Id. § 121.589(b), (c). The
regulations do not define carry-on baggage, however. Instead,
FAA guidance documents instruct airlines to describe “what
you include in the term ‘Carry-On Baggage’” as part of a
carry-on baggage program. FAA Advisory Circular No. 121-
29B, Carry-On Baggage (2000), at 2.
FAA regulations nominally ban the operation of most
PEDs during flight, save for portable voice recorders, hearing
aids, pacemakers, and electric shavers. 14 C.F.R. § 121.306.
However, this regulation contains a broad exception allowing
for the use of any device that the airline determines “will not
cause interference with the navigation or communication
system of the aircraft.” Id. § 121.306(b)(5). Since the late
1950s, the FAA has worked with the airline industry to study
the risks involved in PED use and produce guidance
documents to assist airlines in making safety determinations
about device usage during flight. Prior to 2012, the FAA
recommended that airlines allow passengers to use devices
during the main portion of a flight, but prohibit use during
takeoff and landing. This guidance was nonbinding; however,
most airlines followed the FAA recommendation because the
6
agency provided no direction on how to demonstrate that
devices could be used safely during takeoff and landing.
The FAA decided to reevaluate its safety
recommendations in 2012. The agency published a notice in
the Federal Register seeking public comment on its guidance
to airlines regarding how to determine whether and when
electronic devices are safe for in-flight use. In the notice, the
agency “stress[ed] that the existing regulations allow
[airlines] to authorize the use of PEDs, and that no specific
FAA approval is required.” Passenger Use of Portable
Electronic Devices on Board Aircraft, 77 Fed. Reg. 53,159-
02, 53,160 (Aug. 31, 2012). More than a thousand comments
were submitted, including one by the AFA. As promised in
the notice, the FAA assembled an Aviation Rulemaking
Committee (“Committee”) to review the comments and
recommend changes to the agency’s policies. The Committee
was composed of representatives from a variety of
stakeholder groups, including the AFA.
The Committee’s report, issued on September 30, 2013,
made technical and operational recommendations aimed at
helping airlines safely expand passenger use of PEDs. The
Committee designed a method for airlines to use in assessing
whether passengers can safely keep their devices on during
takeoff and landing. The AFA representative dissented from
the method recommended by the Committee, advocating
instead for a more conservative approach. The Committee
also recommended that the FAA update its policy and
guidance documents on the stowage of baggage and other
items to accommodate expanded use of PEDs. This
recommendation was unanimous.
In response to the report, the FAA produced two sets of
guidance documents. The first, FAA Information for
7
Operators 13010, Expanding Use of Passenger Portable
Electronic Devices (PED) (2013), and its supplement, are
directed at airlines interested in allowing passengers to use
PEDs during takeoff and landing. These documents lay out a
roadmap, based on the Committee’s recommendations, for
evaluating aircraft and revising policies so that an airline can
safely permit expanded PED use. Among other things, the
guidance instructs airlines to write policies ensuring that
devices are “properly secured and stowed” during takeoff and
landing. FAA Information for Operators 13010 Supplement
(2014), at 6. “Secured” and “stowed” are not synonyms. The
guidance explains that “stowed” means placing an object in
an approved carry-on stowage location certified to hold its
mass during an emergency landing. Id. at 14. “Secured”
means restrained in an area that is not so certified. Id. The
guidance instructs that large devices like laptops must be
stowed in approved carry-on locations. Id. However, small
devices can simply be secured in armbands, garment pockets,
or in hand. Id. The AFA has not challenged this guidance.
The second guidance document, Notice N8900.240, is
addressed to the FAA’s aviation safety inspectors. The Notice
explains the new guidance to airlines, and states that the
agency does not need to approve an airline’s finding that
expanded PED use will not interfere with flight safety. Notice
8900.240 at 1–2. The Notice also observes that expanding
PED use may necessitate revisions to an airline’s policies and
documentation, including carry-on baggage programs. The
Notice lists some “general concerns” that a modified carry-on
baggage program “should address.” Id. at 3. For example,
“[l]arge PED, such as full-size laptops, must be safely stowed
so as not to present a hazard in the event of severe turbulence,
crash forces, or emergency egress.” Id. The Notice thus gives
guidance to aviation safety inspectors to assist them in
addressing issues that airlines may face in connection with
8
expanded passenger use of PEDs. It does not, however,
compel the airlines to do anything.
On December 30, 2013, the AFA filed a petition for
review of the Notice in this court. The AFA asks that the
Notice be set aside on the grounds that the portion allowing
small PEDs to remain secured (rather than stowed) during
takeoff and landing is arbitrary, capricious, contrary to
existing regulations, and was improperly promulgated without
notice and comment.
II. ANALYSIS
A. Legal Standard
As noted above, the AFA seeks to invoke this court’s
jurisdiction under 49 U.S.C. § 46110(a). Section 46110(a)
permits “a person disclosing a substantial interest in an order
issued by the Secretary of Transportation . . . [to] apply for
review of the order by filing a petition for review” in the court
of appeals. However, in order for us to entertain a petition
under this section, the challenged order “must possess the
quintessential feature of agency decisionmaking suitable for
judicial review: finality.” City of Dania Beach v. FAA, 485
F.3d 1181, 1187 (D.C. Cir. 2007) (quoting Vill. of
Bensenville, 457 F.3d at 68). A final order has two key
qualities. First, it “must mark the ‘consummation’ of the
agency’s decisionmaking process,” rather than being
“tentative or interlocutory.” Bennett, 520 U.S. at 177–78
(citation omitted). Second, it must determine “rights or
obligations,” or produce “legal consequences.” Id. at 178
(internal quotation marks omitted).
In litigation over guidance documents, the finality inquiry
is often framed as the question of whether the challenged
9
agency action is best understood as a non-binding action, like
a policy statement or interpretive rule, or a binding legislative
rule. See Ctr. for Auto Safety v. Nat’l Highway Traffic Safety
Admin., 452 F.3d 798, 806 (D.C. Cir. 2006). A policy
statement “explains how the agency will enforce a statute or
regulation – in other words, how it will exercise its broad
enforcement discretion or permitting discretion under some
extant statute or rule.” Nat’l Mining Ass’n v. McCarthy, 758
F.3d 243, 252 (D.C. Cir. 2014). It serves to “appris[e] the
regulated community of the agency’s intentions as well as
informing the exercise of discretion by agents and officers in
the field.” Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 949
(D.C. Cir. 1987). Policy statements “are binding on neither
the public nor the agency,” and the agency “retains the
discretion and the authority to change its position . . . in any
specific case.” Syncor Int’l Corp. v. Shalala, 127 F.3d 90, 94
(D.C. Cir. 1997) (citations omitted). Policy statements are
excepted from the requirements of notice and comment
rulemaking. See 5 U.S.C. § 553(b)(3)(A).
The same is true with respect to interpretive rules, which
are “issued by an agency to advise the public of the agency’s
construction of the statutes and rules which it administers.”
Perez, 135 S. Ct. at 1204 (quoting Shalala v. Guernsey Mem’l
Hosp., 514 U.S. 87, 99 (1995)). Interpretive rules do not carry
the force and effect of law, and they need not be promulgated
pursuant to notice and comment procedures under the APA.
Perez, 135 S. Ct. at 1203–04. And “[b]ecause an agency is not
required to use notice-and-comment procedures to issue an
initial interpretive rule, it is also not required to use those
procedures when it amends or repeals that interpretive rule.”
Id. at 1206. Thus, under Perez, it is clear that an agency does
not “amend” an established regulation merely by issuing a
new interpretation of the regulation. Id. at 1207–08.
 10
In this case, it really does not matter whether Notice
N8900.240 is viewed as a policy statement or an interpretive
rule. The main point here is that the Notice is not a legislative
rule carrying “the force and effect of law.” Perez, 135 S. Ct.
at 1204. A legislative rule “modifies or adds to a legal norm
based on the agency’s own authority” flowing from a
congressional delegation to engage in supplementary
lawmaking. Syncor, 127 F.3d at 95. The APA requires such
rules to be promulgated pursuant to notice and comment. Id.
“A properly adopted substantive rule establishes a standard of
conduct which has the force of law.” Pac. Gas & Elec. Co. v.
Fed. Power Comm’n, 506 F.2d 33, 38 (D.C. Cir. 1974).
Agency actions that “impose legally binding obligations or
prohibitions on regulated parties” or “set[] forth legally
binding requirements for a private party to obtain a permit or
license” are legislative rules. Nat’l Mining, 758 F.3d at 251–
52.
The point at which a purported guidance document
crosses over from being a non-binding policy statement or
interpretive rule to a legislative rule sometimes may be
“enshrouded in considerable smog.” Cmty. Nutrition, 818
F.2d at 946 (internal quotation marks omitted). The most
important factor in differentiating between binding and non-
binding actions is “the actual legal effect (or lack thereof) of
the agency action in question.” Nat’l Mining, 758 F.3d at 252.
Agency action that creates new rights or imposes new
obligations on regulated parties or narrowly limits
administrative discretion constitutes a legislative rule. See
Cmty. Nutrition, 818 F.2d at 948; accord Auto Safety, 452
F.3d at 806. The language employed by the agency may play
an important role in this analysis: a document that reads like
an edict is likely to be binding, while one riddled with caveats
is not. See Nat’l Mining, 758 F.3d at 252–53. Courts also
consider how an agency has characterized a purported
11
guidance, and whether it was published in the Federal
Register or the Code of Federal Regulations. Auto Safety, 452
F.3d at 806.
In following these principles, we have little trouble in
concluding that the Notice is not a legislative rule.
B. The Challenged Notice Is Nothing More Than a
General Statement of Agency Policy or an Interpretive
Rule
The guidance offered in Notice N8900.240 reflects
nothing more than a statement of agency policy or an
interpretive rule. The Notice is therefore unreviewable. The
Notice does not impose any obligation or prohibition on
regulated entities. Neither does it create a new basis for
enforcement or liability. Any carry-on baggage plan that was
or would have been approved prior to the Notice is still
permissible today. In other words, airlines “are free to ignore”
the Notice. Nat’l Mining, 758 F.3d at 252 (internal quotation
marks omitted).
This lack of legal effect matches the agency’s description
of the document’s purpose: “This notice provides guidance to
aviation safety inspectors . . . and [airlines] implementing
policy that allows expanded use of [PEDs] throughout various
phases of flight.” Notice N8900.240 at 1. The quoted
language describes the archetypal aim of a policy statement:
to apprise the public of the agency’s intentions, and to inform
the decisions of those who exercise the agency’s discretion.
See Cmty. Nutrition, 818 F.2d at 949.
The Notice instructs aviation safety inspectors on what to
look for when evaluating revised carry-on baggage programs,
but it does not limit their discretion. In other words, “the
12
document as a whole does not read as a set of rules.”
Wilderness Soc’y v. Norton, 434 F.3d 584, 595 (D.C. Cir.
2006). Moreover, the Notice does not require airlines to revise
their policies and documentation as a condition of allowing
device usage during takeoff and landing. Instead, it states that
such an expansion “may require” revised policies. Notice
N8900.240 at 3. The airlines still have substantial leeway to
establish PED policies under the applicable regulations.
Similarly, the Notice does not mandate specific changes
to carry-on baggage programs, merely stating that airlines
“may need to” make alterations. Id. This preserves the
aviation safety inspectors’ discretion to evaluate whether such
changes are necessary in an individual case. And rather than
listing explicit requirements that such modified carry-on
baggage programs must meet, the Notice simply says that
updated plans “should address the following general
concerns.” Id. at 3 (emphasis added).
The use of language like “may” and “should” instead of
“shall” or “must” suggests that the provisions that follow are
meant to be “precatory, not mandatory.” See Judd v.
Billington, 863 F.2d 103, 106 (D.C. Cir. 1988). Even if the
Notice arguably inclines aviation safety inspectors towards
certain outcomes when evaluating carry-on baggage
programs, it does not constrain their discretion enough to
create a binding norm. See Panhandle Producers & Royalty
Owners Ass’n v. Econ. Regulatory Admin., 822 F.2d 1105,
1110 (D.C. Cir. 1987) (noting that policy statements can
create rebuttable presumptions). “An agency pronouncement
is not deemed a binding regulation merely because it may
have some substantive impact, as long as it leave[s] the
administrator free to exercise his informed discretion.” Id.
(alteration in original) (internal quotation marks omitted).
13
Courts draw a line only when a purported guidance
document “so fills out the statutory scheme that upon
application one need only determine whether a given case is
within the rule’s criterion.” Ryder Truck Lines, Inc. v. United
States, 716 F.2d 1369, 1377 (11th Cir. 1983). The FAA has
made it clear that the Notice is not intended to be a legislative
rule – it is merely a non-binding guidance document of the
sort that the agency routinely issues to offer advice to
regulated parties and safety inspectors. There is nothing in the
document to contradict the FAA’s stated purpose. Because the
Notice leaves aviation safety inspectors “free to consider the
individual facts in the various cases that arise,” id., and it does
not command any action by the airlines, it is clear that it does
not establish a binding norm.
C. The Challenged Notice Is Not Contrary to Existing
Regulations
The AFA argues that Notice N8900.240 must be a
legislative rule because it “effectively dismantled 14 C.F.R.
§ 121.589, a regulation that is still in effect and good law.”
Petitioner’s Br. 9. It is true enough that “if a second rule
repudiates or is irreconcilable with a prior legislative rule, the
second rule must be an amendment of the first; and, of course,
an amendment to a legislative rule must itself be legislative.”
Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d
1106, 1109 (D.C. Cir. 1993) (brackets and internal quotation
marks omitted). However, we see no contradiction between
the Notice and any FAA regulation. And, as noted above, it
does not matter that the Notice may amend existing guidance
documents. Perez, 135 S. Ct. at 1207–08; Hudson, 192 F.3d at
1035–36.
14 C.F.R. § 121.589 requires airlines to have an approved
carry-on baggage program. It also requires that each article of
14
carry-on baggage be properly stowed in an appropriate
location prior to takeoff and landing. But the regulation does
not define carry-on baggage. That task is left to the airlines
themselves as part of their responsibility to develop a carry-on
baggage program. Advisory Circular No. 121-29B at 2.
Longstanding FAA guidance instructs airlines to devise and
submit “[a] list of specific items passengers can carry in the
cabin and stow outside of specified carry-on baggage
compartments” as part of their carry-on baggage program. Id.
As a result, the regulation leaves airlines free to write carry-
on baggage programs that do not include smartphones and
similar devices in the definition of carry-on baggage.
The AFA points to a 2009 guidance document which they
interpret to imply that the FAA previously considered small
devices to be carry-on baggage. See FAA Information for
Operators 09018, Stowage of Items in Seat Pockets (2009).
This is irrelevant because the guidance document is simply a
non-binding policy statement. Even if the AFA’s reading is
correct, the FAA is not obliged to continue following it. See
Perez, 135 S. Ct. at 1206; Hudson, 192 F.3d at 1035–36.
The PED Committee’s report provides further evidence
that FAA regulations do not require small devices to be
treated as carry-on baggage. The Committee found that “there
is a lack of guidance regarding passenger personal items that
must be stowed for takeoff and landing (i.e., a hard cover
book can be held by a passenger, while a purse must be
stowed).” PED Aviation Rulemaking Committee,
Recommendations on Expanding the Use of Portable
Electronic Devices During Flight (2013), at 16; see also id. at
22. And it is uncontested by the parties that airlines do not
force passengers to stow small items like keys, smartphones,
or books in approved carry-on baggage locations like
overhead bins or under the seat. Instead, passengers are
15
generally allowed to hold such items in hand, on their laps, or
in clothes pockets.
This court’s jurisdiction to review FAA orders under 49
U.S.C. § 46110(a) extends only to those orders that constitute
final agency action. Because Notice N8900.240 is non-
binding guidance that does not conflict with existing
regulations, this court is without jurisdiction to address AFA’s
challenge to the Notice.
III. CONCLUSION
For the reasons set forth above, the petition is dismissed.
So ordered.