United States Court of Appeals, District of Columbia Circuit
Flyers Rights Education Fund, Inc., d/b/a FlyersRights.org, and Paul Hudson, Petitioners
v.
Federal Aviation Administration, et al., Respondents
Argued
March 10, 2017
On
Petition for Review of an Order of the Federal Aviation
Administration Joseph E. Sandler argued the cause
and filed the briefs for petitioner.
Karen
Schoen, Attorney, U.S. Department of Justice, argued the
cause for respondents.
With
her on the brief were Benjamin C. Mizer, Principal Deputy
Assistant Attorney at the time the brief was filed, and Mark
B. Stern, Attorney.
Before: Rogers, Millett, and Pillard, Circuit Judges.
OPINION
Millett, Circuit Judge
This is
the Case of the Incredible Shrinking Airline Seat. As many
have no doubt noticed, aircraft seats and the spacing between
them have been getting smaller and smaller, while American
passengers have been growing in size. Paul Hudson and the
Flyers Rights group became concerned that this sharp
contraction in passenger seating space was endangering the
safety, health, and comfort of airline passengers. So they
petitioned the Federal Aviation Administration to promulgate
rules governing size limitations for aircraft seats to
ensure, among other things, that passengers can safely and
quickly evacuate a plane in an emergency. The Administration
denied the petition, asserting that seat spacing did not
affect the safety or speed of passenger evacuations. To
support that conclusion, the Administration pointed to (at
best) off-point studies and undisclosed tests using unknown
parameters. That type of vaporous record will not do-the
Administrative Procedure Act requires reasoned decisionmaking
grounded in actual evidence. Accordingly, we grant the
petition for review in part and remand to the Administration.
I
A
Congress
has charged the Federal Aviation Administration with ensuring
the safety and security of commercial airline passengers.
See 49 U.S.C. §§ 44701, 40101(d); see
also Wallaesa v. Federal Aviation Admin., 824 F.3d 1071,
1079 (D.C. Cir. 2016). In fulfilling that role, the
Administration has "'plenary authority to
[m]ake and enforce safety regulations governing the design
and operation of civil aircraft' in order to ensure the
'maximum possible safety.'"
Bargmann v. Helms, 715 F.2d 638, 642 (D.C. Cir.
1983) (alteration in original) (quoting H.R. Rep. No. 2360,
85th Cong., 2d Sess. 2, 7 (1958)).
As
relevant here, the Federal Aviation Act charges the
Administration with "promot[ing] safe flight of civil
aircraft in air commerce by prescribing * * * minimum
standards required in the interest of safety for * * * the
design, material, construction, quality of work, and
performance of aircraft, " as well as "regulations
and minimum safety standards for other practices, methods,
and procedure[s] * * * necessary for safety in air
commerce[.]" 49 U.S.C. § 44701(a)(1), (5). When
issuing such minimum safety standards and regulations, the
Administration must consider "the duty of an air carrier
to provide service with the highest possible degree of safety
in the public interest[.]" Id. §
44701(d)(1)(A). In addition, the Administration "shall
consider the following matters, among others, as being in the
public interest: (1) assigning, maintaining, and enhancing
safety and security as the highest priorities in air
commerce[, and] (2) regulating air commerce in a way that
best promotes safety and fulfills national defense
requirements." Id. § 40101(d)(1), (2). The
Administration thus has broad authority to promulgate
regulations "reasonably related to safety in
flight." Wallaesa, 824 F.3d at 1079 (internal
quotation marks and citation omitted).
Members
of the public may petition the Administration to promulgate,
amend, or repeal regulations. See 49 U.S.C. §
106(f)(3)(A); 14 C.F.R. § 11.61(a). Such a petition must
include, among other things, the purpose of the proposed
action, an "explanation of why [the] proposed action
would be in the public interest, " and "[a]ny
specific facts or circumstances that support" the
proposed action. 14 C.F.R. § 11.71(a). Once it receives
a petition, the Administration has six months to respond
either "by dismissing such petition[], by informing the
petitioner of an intention to dismiss, or by issuing a notice
of proposed rulemaking or advanced notice of proposed
rulemaking." 49 U.S.C. § 106(f)(3)(A); see
14 C.F.R. § 11.73(a), (e).
B
On
August 26, 2015, Paul Hudson and the non-profit organization
Flyers Rights Education Fund of which he is president
(collectively, "Flyers Rights") petitioned the
Administration to promulgate rules governing the minimum
requirements for seat sizes and spacing on commercial
passenger airlines. In its petition, Flyers Rights provided
evidence that commercial airline seat and spacing dimensions
have steadily decreased in size over the last several
decades. The petition noted that economy-class "seat
pitch"-the distance between a point on one seat and the
same point on the seat directly in front of it-has decreased
from an average of 35 inches to 31 inches, and in some
airplanes has fallen as low as 28 inches. Evidence in the
petition further indicated that average seat width has
narrowed from approximately 18.5 inches in the early-2000s to
17 inches in the early- to mid-2010s. The petition also noted
that, since the 1960s, the average American flyer had grown
steadily larger in both height and girth. Flyers Rights
expressed concern that the decrease in seat size, coupled
with the increase in passenger size, imperiled
passengers' health and safety by slowing emergency egress
and by causing deep vein thrombosis (a potentially fatal
condition involving blood clots in the legs), as well as
"soreness, stiffness, [and] other joint and muscle
problems." Pet. for Rulemaking 6.[1]
Accordingly,
Flyers Rights asked the Administration to: promulgate
regulations that would (i) "set[] maintenance standards
and limit[] the extent of seat size changes [on commercial
airlines] in order to ensure consumer safety, health, and
comfort"; (ii) "plac[e] a moratorium on any further
reductions in seat size, width, pitch, padding, and aisle
width until a final rule is issued"; and (iii)
"[a]ppoint an advisory committee or task force to assist
and advise the [Administration] in proposing seat and
passenger space rules and standards[.]" Pet. for
Rulemaking 3.
On
February 1, 2016, the Administration denied Flyers
Rights' petition for rulemaking. The Administration
explained that, in addressing petitions for rulemaking, it
weighs: "(1) [t]he immediacy of the safety or security
concerns * * * raise[d], (2) [t]he priority of other issues
the [Administration] must deal with, and (3) [t]he resources
we have available to address these issues." Denial of
Pet. for Rulemaking 1; see also 14 C.F.R. §
11.73(a). The Administration then concluded that Flyers
Rights' concerns did not warrant action because the
issues raised "relate[d] to passenger health and
comfort, and d[id] not raise an immediate safety or security
concern." Denial of Pet. for Rulemaking 2. The
Administration reasoned that it already "require[s]
full-scale evacuation demonstrations and analysis that set
the limit for the maximum number of passengers for any given
airplane model, " including for aircraft with
"interior configurations that are more critical (less
seat pitch and higher number of passengers) than most
configurations operated by the airlines, " and that
emergency egress tests "have been successfully conducted
at 28- and 29-inch pitch[.]" Id. The
Administration added that "[s]eat pitch alone does not
determine the amount of space available between seats * * *
[because] modern, thinner seats at lower seat pitch provide
more space than older seats did at higher pitch."
Id. The Administration further noted that the
medical concerns identified in the petition exist
"irrespective of the seat pitch[.]" Id.
With respect to Flyers Rights' concerns about deep vein
thrombosis, the Administration concluded that the condition
was "rare"; it can occur with "any
long-duration seated activity"; and its risks are
"the same for economy-class and business-class."
Id.
The
Administration's denial of the petition for rulemaking
did not cite any studies or tests to corroborate its
representations. Nor did it challenge Flyers Rights'
characterization of seat dimension decreases or passenger
size increases.
Flyers
Rights sent a follow-up letter to the Administration's
Director of the Aircraft Certification Service asking the
Administration to "formally cite the study(ies) [it] * *
* rel[ied] on" in denying the petition. J.A. 173. In
response, the Administration identified a series of its own
reports on airplane emergency egress and links to medical
websites that discussed deep vein thrombosis. The studies
cited in the letter did not address the impact of smaller
seat dimensions or increased passenger size on the ability of
passengers to expeditiously leave their seats and reach the
emergency exits.
Dissatisfied
with the Administration's unsubstantiated representations
about matters of passenger health and safety, Flyers ...