EMBARRASSING—Court of Appeals decides not to defer to FAA’s expertise; TO THE RESCUE, a New DOT General Counsel

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Airline Seating Standards

Court of Appeals Denies FAA Requiring “Exact Proof”

One principle of administrative law is called due deference; that is, absent clear error or abuse of discretion a reviewing body will defer to the judgment of an administrative agency.[1] The logic behind this judicial interpretation is that the federal organization responsible for interpreting its authorizing legislation should be recognized for some level of competence in understanding its Congressional mandate.

Recently, the United States Court of Appeals for the District of Columbia Circuit reviewed an appeal from an FAA decision to deny a petition for rulemaking as to seat standards. In Flyers Rights Education Fund, Inc., d/b/a Flyersrights.org and Paul Hudson, Petitioners v. Federa Aviation Administration, the Appellate Court ruled:

Indeed, we have long held that, when “the data relied on by [an agency] in reaching its decision is not included in the administrative record and is not disclosed to the court[,]” we cannot “determine whether the final agency decision reflects the rational outcome of the agency’s consideration of all relevant factors[.]” United States Lines, 584 F.2d at 533 (footnote omitted). Whatever deference we generally accord to administrative agencies, “we will not defer to a declaration of fact that is ‘capable of exact proof’ but is unsupported by any evidence.” [emphases added]

The case involved a petition for rulemaking filed by a consumer advocate group requesting the FAA to:

…(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[.]” [emphases added]

[NOTE: the Court disagree with Flyers Rights’ challenge to the Administration’s declination to regulate matters of physical comfort and routine health.]

Airline Seating Standards

The FAA asserted that its mandated emergency evacuation tests, in which the maximum numbers of passengers must be able to exit the aircraft in 90 seconds, was adequate proof that the “shrinking seat” phenomena did not reduce the safety margin. Judge Millett was not overwhelmed by this “proof” and pointed to absent “capable of exact proof” standard [quoted above]. The FAA’s position was that the Part 121 evacuation test data was proprietary and could not be entered into the record. Judge Millett opined in quite critical terms, that this reliance on not-to-be disclosed information was not adequate:

In short, when an agency denies a petition for rulemaking, the record can be slim, but it cannot be vacuous. Especially so when, as here, the petition identifies an important issue that falls smack-dab within the agency’s regulatory ambit. While we do not require much of the agency at this juncture, we do require something. And information critically relied upon by the agency that no one can see does not count. We accordingly remand to the Administration to adequately address the petition and the emergency egress concerns it raises. If the petition for rulemaking is again denied, the Administration must provide appropriate record support for its decision. [emphases added]

airline seating standards sizes

The court did not require that the FAA grant FLYERSRIGHTS petition; rather and quite unusually, the Judges set a remedy— that the FAA must issue “a properly reasoned disposition of the petition’s safety concerns about the adverse impact of decreased seat dimensions and increased passenger size on aircraft emergency egress.” In simpler words, that equates to an order that the FAA find a way in which enough of the supporting data from the emergency evacuation tests [it may be enough to redact the names of the Part 21 applicant and the models being tested] shows that size of the seat/seat pitch do not denigrate exiting performance.

It is difficult to conceive why such an exhibit was not appended to the FAA denial of the petition for rulemaking.

Recently, the same Court of Appeals was unusually critical of another FAA {DOT} rulemaking decision.

Responding to heavy political flak about unsafe drone flights, Secretary Foxx announced that “registration” requirements for these UASs were to be issued forthwith and they were. Equally swiftly, a petition for review was filed and the DC Circuit found fault with the legal basis

“In short, the 2012 FAA Modernization and Reform Act provides that the FAA ‘may not promulgate any rule or regulation regarding a model aircraft,’ yet the FAA’s 2015 Registration Rule is a ‘rule or regulation regarding a model aircraft.’ Statutory interpretation does not get much simpler. The Registration Rule is unlawful as applied to model aircraft.”

The FAA has earned the reputation of a safety organization immune to the external forces which Courts of Appeal seek to ferret out in seemingly innocuous actions. Years of carefully considered legal positions and of thoroughly documented technical decisions created a level of credibility with the judicial community. These two decisions may have done some harm to that historical recognition of competence.

That is not to say that there is substantial reasons to question the integrity of persons involved in either case. Politics within an Administration, exigencies of the moment and many other variables contribute to litigation strategy.

[NOTE: contrary to some insinuations, the profitability of a manufacturer or airline gets ZERO consideration in the formulating of positions. The FAA’s career staff and political appointees do not consider economics outside of the OMB/OIRA benefit/cost analysis.]

dot General Counsel nominee Steven BradburyThat said, it appears that the Secretary of Transportation and the FAA may benefit from a highly qualified General Counsel nominee, Steven Bradbury.

He graduated from Stanford University with a from B.A., majoring in English. Bradbury attended the University of Michigan Law School, where he received his J.D.magna cum laude. He was an editor for the Michigan Law Review and a member of the Order of the Coif. He served as a law clerk to Judge James L. Buckley on the U.S. Court of Appeals for the D.C. Circuit and then he served as a law clerk to Justice Justice Clarence Thomas on the Supreme Court of the United States from 1992 to 1993.

His confirmation hearing before the Senate Commerce, Science and Transportation Committee involved some heavy criticism for memoranda written while at the Office of Legal Counsel. A vote is scheduled for August 2, 2017.

Regaining the confidence of the Appellate Judges will be one of Mr. Bradbury’s early challenges.


[1]The doctrine has, in recent cases, been eroded from the historic almost blank check approach.
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2 Comments on "EMBARRASSING—Court of Appeals decides not to defer to FAA’s expertise; TO THE RESCUE, a New DOT General Counsel"

  1. Sandy Murdock | August 1, 2017 at 1:28 pm | Reply

    One of the few media reports on the issue which is accurate–Court Directs F.A.A. to Revisit Issue of ‘Shrinking’ Airline Seat Space–https://www.nytimes.com/2017/07/31/business/airline-seat-size-faa.html

  2. I was recently on a Delta flight, seated in the last row. The man in the seat in front of me was huge. So huge, that the back of his seat bowed. I was admonished to put the tray up, but it would not latch. The attendant was furious. And on we went. I kept waiting for the seat to collapse onto my knees. Mercifully, it did not.
    The whole safety scheme needs to be reviewed by an independent FAA evaluator.

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