United States Court of Appeals, District of Columbia Circuit
Paralyzed Veterans of America and Larry J. Dodson, Petitioners
United States Department of Transportation and Elaine L. Chao, in her official capacity as Secretary of Transportation, Respondents
September 7, 2018
Petitions for Writ of Mandamus of Transfer Order of the
United States District Court for the District of Columbia and
for Review of Agency Action by the United States Department
Karianne M. Jones argued the cause for petitioners. With her
on the briefs was Javier M. Guzman.
Samantha L. Chaifetz, Attorney, U.S. Department of Justice,
argued the cause for respondents. With her on the brief were
Michael S. Raab, Attorney, Steven G. Bradbury, General
Counsel, U.S. Department of Transportation, Paul M. Geier,
Assistant General Counsel, and Charles Enloe, Trial Attorney.
Before: Griffith, Circuit Judge, and Edwards and Randolph,
Senior Circuit Judges.
EDWARDS, SENIOR CIRCUIT JUDGE.
49 U.S.C. § 46110(a), petitions for review of specified
orders issued by the Secretary of Transportation must be
filed in the United States Court of Appeals for the District
of Columbia Circuit or in the court of appeals for the
circuit in which the petitioner resides or has its principal
place of business. Section 46110 covers, in particular,
judicial review of orders issued under part A of subtitle VII
of title 49 of the U.S. Code ("Part A"), including
orders issued pursuant to §§ 41708 and 41709. A
petition for review of an order issued under Part A must be
filed not later than 60 days after the order is issued unless
there are reasonable grounds for not filing by the 60th day.
2016, the Department of Transportation ("DOT" or
"Department") issued a rule requiring airlines to
report the number of wheelchairs and scooters that are
mishandled after being transported as checked luggage on
passenger flights. This so-called "Reporting Rule"
was scheduled to take effect on January 1, 2018. On March 21,
2017, however, DOT issued an "Extension Rule" that
delayed the effective date of the Reporting Rule by one year.
On July 31, 2017, over four months after the issuance of the
Extension Rule, Paralyzed Veterans of America and Larry J.
Dodson, a paralyzed Air Force veteran, ("the
Petitioners") filed a lawsuit in the District Court
challenging the Extension Rule. They contended that the rule
was procedurally infirm because it was issued without
notice-and-comment procedures and it was substantively
invalid because it was arbitrary and capricious. In response
to this suit, DOT elected not to address the merits of the
Petitioners' claims and instead argued only that the
District Court lacked subject-matter jurisdiction over the
suit. The District Court agreed with DOT, held that it lacked
jurisdiction over this action, and then transferred the case
"in the interests of justice" to this court
pursuant to 28 U.S.C. § 1631. Paralyzed Veterans of
Am. v. U.S. Dep't of Transp., 286 F.Supp.3d 111, 120
reasons stated below, we affirm the District Court. We agree
that if there is jurisdiction to hear this suit, it lies in
the courts of appeals. The Petitioners knew that challenges
to the Extension Rule were required to be filed pursuant to
§ 46110(a). Indeed, the Petitioners cited the correct
authority in their complaint. We therefore reject the
Petitioners' request that this case be transferred back
to the District Court. We further dismiss the case because
the Petitioners' claim was filed after the 60-day
statutory deadline and there are no "reasonable
grounds" justifying their untimely filing.
The Reporting Rule and the Extension Rule
2011, DOT initiated notice-and-comment rulemaking to amend 14
C.F.R. § 234.6 to require airlines to report the number
of wheelchairs and scooters that are delayed, damaged, or
lost as checked luggage on domestic flights. The Department
stated that the proposed data collection would be
"crucial to understanding the magnitude of the problem
as this data is not available to us through other
means." Reporting Ancillary Airline Passenger Revenues,
76 Fed. Reg. 41, 726, 41, 728 (July 15, 2011). It further
stressed that "[i]t is very important that passengers
with mobility disabilities arrive at their destination with
their wheelchair/scooter in good working order" because
"[w]ithout these devices, they will have great
difficulty in exiting the airport or may be confined to their
hotel or place of visit." Id.
notice-and-comment proceedings, DOT adopted the Reporting
Rule on November 2, 2016. Reporting of Data for Mishandled
Baggage and Wheelchairs and Scooters Transported in Aircraft
Cargo Compartments, 81 Fed. Reg. 76, 300. Under the rule, air
carriers are required, on a monthly basis, "to report
the number of mishandled wheelchairs and scooters and the
total number of wheelchairs/scooters transported in the
aircraft cargo department." Id. at 76, 303. The
Department set January 1, 2018, as the compliance date for
the reporting requirement because that date would
"provide air carriers with adequate time to update
their internal systems and reporting processes."
Id. at 76, 305.
January 2017, however, the White House issued a regulatory
freeze memorandum, directing agencies to postpone for 60 days
rules that had been published in the Federal Register but had
not yet become effective. This directive did not appear to
apply to the Reporting Rule because that rule had already
become effective. However, according to the Petitioners, an
industry lobbying group, Airlines for America, contacted
officials at DOT multiple times to request that the Reporting
Rule be delayed. Pets.' Br. 7.
March 21, 2017, DOT issued the Extension Rule, a final rule
that amended 14 C.F.R. § 234.6. DOT's announcement
The Department of Transportation is amending its regulations
by extending the compliance date of its final rule on
reporting of data for mishandled baggage and wheelchairs in
aircraft cargo compartments from January 1, 2018 to January
1, 2019. Under that final rule, the mishandled-baggage data
that air carriers are required to report changed, from the
number of Mishandled Baggage Reports and the number of
domestic passenger enplanements to the number of mishandled
bags and the number of enplaned bags. The rule also requires
separate statistics for mishandled wheelchairs and scooters
used by ...