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Flyers Rights Education Fund, Inc. v. Federal Aviation Administration

United States Court of Appeals, District of Columbia Circuit

July 28, 2017

Flyers Rights Education Fund, Inc., d/b/a, and Paul Hudson, Petitioners
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.


          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.



         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).


         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 ...

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