National Federation of the Blind v. United States Department of Transportation

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 10, 2016 Decided June 28, 2016

No. 15–1026

NATIONAL FEDERATION OF THE BLIND, ET AL.,

PETITIONERS

v.

UNITED STATES DEPARTMENT OF TRANSPORTATION

AND ANTHONY FOXX,

RESPONDENTS

Consolidated with 15–5078

On Petition for Review of an Order

of the Department of Transportation and

on Petition for Writ of Mandamus

(1:14-cv-00085)

Kevin D. Docherty argued the cause for the petitioners.

Daniel F. Goldstein, Joseph B. Espo and Gregory P. Care

were with him on brief.

Abby C. Wright, Attorney, United States Department of

Justice, argued the cause for the respondents. Benjamin C.

Mizer, Principal Deputy Assistant Attorney General, Michael

S. Raab, Attorney, Paul M. Geier, Assistant General Counsel

for Litigation, United States Department of Transportation,

2

Peter J. Plocki, Deputy Assistant General Counsel for

Litigation, Joy K. Park, Senior Trial Attorney, and Blane A.

Workie, Assistant General Counsel for Aviation Enforcement

and Proceedings, were with her on brief.

Before: HENDERSON, GRIFFITH and PILLARD, Circuit

Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: Petitioners

National Federation of the Blind, Marc Maurer and Anil Lewis

(collectively, NFB) challenge a rule issued by the United States

Department of Transportation (DOT). The rule requires that

air carriers begin to purchase ticketing kiosks accessible to

blind persons within three years of the rule taking effect so that

25 per cent of kiosks eventually will be blind-accessible.

After DOT issued its final rule, NFB filed a complaint in

district court, challenging the rule because, among other

reasons, it does not require air carriers to make all airport

kiosks accessible to the blind. The district court concluded

that it lacked jurisdiction under 49 U.S.C. § 46110(a) because

the rule is an “order” over which the court of appeals has

exclusive jurisdiction.

Instead of dismissing NFB’s complaint, however, the

district court transferred the complaint to our court, re-styled as

a petition for review. NFB subsequently filed a notice of

appeal—which we construed as a petition for a writ of

mandamus—challenging the district court’s conclusion that it

lacked jurisdiction. For the following reasons, we dismiss

NFB’s petition for review and deny its mandamus petition.

3

I. BACKGROUND

The Air Carrier Access Act of 1986 (ACAA), Pub. L. No.

99-435, 100 Stat. 1080, prohibits air carriers from

“discriminat[ing] against any otherwise qualified handicapped

individual” on the basis of disability and grants the DOT

Secretary the authority to promulgate regulations to “ensure

non-discriminatory treatment of qualified handicapped

individuals.” Id. Using its authority, DOT issued a

supplemental notice of proposed rulemaking in 2011 which

proposed that all future automated ticketing kiosks purchased

by certain domestic and foreign air carriers 1 be accessible to

blind persons. See Nondiscrimination on the Basis of

Disability in Air Travel: Accessibility of Web Sites and

Automated Kiosks at U.S. Airports, 76 Fed. Reg. 59,307,

59,309 (Sept. 26, 2011). This requirement would have taken

effect sixty days after promulgation of the final rule. Id.

DOT nevertheless sought comment on a

less-than-100-per-cent-accessible kiosk requirement and on

the timing of implementation. Id. at 59,320.

In light of comments from both air carriers and advocacy

groups for disabled passengers, DOT altered its approach.

DOT now requires that covered air carriers purchase

blind-accessible kiosks until at least 25 per cent of the

automated kiosks at each location in domestic airports are

1

Both the proposed rule and final rule apply to only United

States airports having 10,000 or more enplanements per year.

Nondiscrimination on the Basis of Disability in Air Travel:

Accessibility of Web Sites and Automated Kiosks at U.S. Airports,

78 Fed. Reg. 67,882, 67,883 (Nov. 12, 2013) (Final Rule or Rule);

Nondiscrimination on the Basis of Disability in Air Travel:

Accessibility of Web Sites and Automated Kiosks at U.S. Airports,

76 Fed. Reg. 59,307, 59,309 (Sept. 26, 2011).

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accessible. 2 See Nondiscrimination on the Basis of Disability

in Air Travel: Accessibility of Web Sites and Automated

Kiosks at U.S. Airports (Final Rule or Rule), 78 Fed. Reg.

67,882, 67,883 (Nov. 12, 2013). The Final Rule became

effective on December 12, 2013, and DOT provided a grace

period wherein air carriers are not required to begin purchasing

accessible kiosks until three years after the effective date of the

Rule’s implementation. Id. at 67,882–83.

NFB filed its complaint in district court on January 22,

2014, seventy-one days after DOT issued the Final Rule.

NFB sought declaratory and injunctive relief under the

Administrative Procedure Act (APA), 5 U.S.C. §§ 701–706,

for DOT’s alleged failure to comply with the ACAA. NFB

alleged that the 25 per cent accessibility requirement and

three-year grace period violated the ACAA’s ban on

discrimination against disabled individuals and resulted from

arbitrary and capricious decision-making. The district court

concluded that it lacked jurisdiction because the Final Rule is

an “order” and 49 U.S.C. § 46110(a) vests the court of appeals

with exclusive jurisdiction of DOT orders. Nat’l Fed’n of the

Blind v. DOT, 78 F. Supp. 3d 407, 414 (D.D.C. 2015).

Although NFB filed its complaint seventy-one days after DOT

issued the Final Rule—and, if construed to be a petition for

review, was therefore time barred under the sixty-day filing

deadline of section 46110(a)—the district court declined to

dismiss the complaint and instead transferred the complaint to

our court to determine whether the untimely filing was

excusable. Id. at 416. NFB subsequently filed a notice of

appeal on February 26, 2015, challenging the district court’s

no-jurisdiction conclusion. We construed the notice of appeal

2

The Rule also requires that disabled passengers be given

priority access to the accessible kiosks because not all kiosks will be

accessible. Final Rule, 78 Fed. Reg. at 67,883.

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as a petition for a writ of mandamus and consolidated the two

petitions for review.

II. ANALYSIS

NFB claims that a writ of mandamus should issue because

the district court erred in its jurisdictional analysis. NFB

further argues that, even if the district court correctly

determined that it lacked jurisdiction, NFB’s untimely filing

should be excused for reasonable grounds under section

46110(a) due to its confusion over the appropriate forum to

challenge DOT’s Final Rule. On the merits, NFB asserts that

we should either vacate the Rule because DOT failed to require

that all future kiosks be accessible or remand the Rule for

further review in light of other alleged flaws in DOT’s

decision-making process. We do not reach NFB’s arguments

on the merits because we conclude that the district court lacked

jurisdiction of NFB’s complaint and that reasonable grounds

do not excuse NFB’s untimely filing.

A.

NFB first requests that we issue a writ of mandamus

because the district court erred in concluding that it lacked

jurisdiction of NFB’s complaint. In reviewing a request for a

writ of mandamus, “[t]he threshold question is whether the

[d]istrict [c]ourt’s . . . ruling constituted legal error. If not,

mandamus is of course inappropriate.” In re Kellogg Brown

& Root, Inc., 756 F.3d 754, 756 (D.C. Cir. 2014). “If the

[d]istrict [c]ourt’s ruling was erroneous,” however, we then

determine “whether that error is the kind that justifies

mandamus.” Id. at 756–57. Because we agree with DOT

that the district court did not err in concluding that it lacked

jurisdiction, we need go no further.

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Section 46110(a) provides that “a person disclosing a

substantial interest in an order issued by the Secretary of

Transportation . . . may apply for review of the order by filing

a petition for review in the United States Court of Appeals for

the District of Columbia Circuit.” 49 U.S.C. § 46110(a)

(emphasis added). Although section 46110(a) does not

specify a finality requirement, we have interpreted section

46110(a) in light of the APA’s definition of “order” at 5 U.S.C.

§ 551(6) to require that a DOT order must be final before it is

appealable. See SecurityPoint Holdings, Inc. v. TSA, 769 F.3d

1184, 1187 (D.C. Cir. 2014). We have not, however,

determined whether a final rule issued by DOT should be

considered an order under section 46110(a).

According to NFB, the “normal default rule,” Pet’rs’ Br.

22 (quoting Am. Petroleum Inst. v. SEC, 714 F.3d 1329, 1332

(D.C. Cir. 2013)), is that the district court is the appropriate

forum for review of agency rulemaking unless there is an

applicable direct-review statute that “specifically gives the

court of appeals subject-matter jurisdiction.” Id. (emphasis in

original) (quoting Watts v. SEC, 482 F.3d 501, 505 (D.C. Cir.

2007)). NFB then points to language from Safe Extensions,

Inc. v. FAA, 509 F.3d 593, 598 (D.C. Cir. 2007), and from

SecurityPoint to argue that we have previously relied on the

APA to define “order” under section 46110(a). In NFB’s

view, because the APA both allegedly controls our

interpretation of section 46110(a) and excludes rulemaking

from its definition of “order,” section 46110(a) does not vest

exclusive jurisdiction of DOT rulemaking review in the court

of appeals. In response, DOT asserts that our recent decision

in New York Republican State Committee v. SEC (NYRSC),

799 F.3d 1126 (D.C. Cir. 2015)—which interpreted a nearly

identical direct-review provision of the Investment Advisers

Act, 15 U.S.C. § 80b-13(a), to include rulemaking under

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“order,” see id. at 1129–30—controls the case. We agree with

DOT that NYRSC is dispositive.

Our precedent holding that “order” in certain

direct-review statutes encompasses the review of rulemakings

dates at least to our decision in Investment Company Institute v.

Board of Governors of the Federal Reserve System, 551 F.2d

1270 (D.C. Cir. 1977). In Investment Co., we reviewed the

direct-review provision of the Bank Holding Company Act of

1956. See id. at 1275–78. In light of intervening Supreme

Court decisions, we abandoned our earlier approach to the

scope of “order” in direct-review statutes, concluding that

“ ‘order’ is interpreted to mean any agency action capable of

review on the basis of the administrative record.” Id. at 1278.

We further explained that the term should not be limited by the

APA definition of “order” because it “has several frequently

utilized meanings which vary in scope, and it is therefore not

surprising that different sections of the same statute might use

the word in different ways.” Id.; see also City of Rochester v.

Bond, 603 F.2d 927, 933 n.26 (D.C. Cir. 1979) (“[C]ourts

sometimes have construed ‘order’ for purposes of special

review statutes more expansively than its definition in the

APA, notably to permit direct review of regulations

promulgated through informal notice-and-comment

rulemaking.”).

NYRSC built on the foundation established in Investment

Co. Under the Investment Advisers Act of 1940, the

Congress had provided for direct review of certain orders of the

Securities and Exchange Commission (SEC) in the court of

appeals: “Any person or party aggrieved by an order issued

by the Commission . . . may obtain a review of such order in”

an appropriate court of appeals. 15 U.S.C. § 80b-13(a). Like

NFB, the NYRSC plaintiffs filed a complaint in district court

seeking judicial review of SEC rulemaking and the district

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court dismissed the complaint for lack of subject matter

jurisdiction. N.Y. Republican State Comm. v. SEC, 70

F. Supp. 3d 362, 363–64 (D.D.C. 2014). We concluded that

“order” in section 80b–13(a) included SEC rules. NYRSC,

799 F.3d at 1129–30. We explained that “[f]or nearly four

decades, it has been blackletter administrative law that, absent

countervailing indicia of congressional intent, statutory

provisions for direct review of orders encompass challenges to

rules.” Id. at 1129. And, “absent contrary congressional

intent, a statutory review provision creating a right of direct

judicial review in the court of appeals of an administrative

‘order’ authorizes such review of any agency action that is

otherwise susceptible of review on the basis of the

administrative record alone.” Id. at 1131. Because, in a

rulemaking, “there is no need for judicial development of an

evidentiary record,” we saw “no gain from vesting jurisdiction

in district courts” and noted that exclusive review in the court

of appeals would eliminate the potential delay and expense of

bifurcating review between the district and appellate courts. 3

Id.

Considering the breadth of the language and analysis in

NYRSC, we can easily conclude that section 46110(a) includes

review of DOT rulemakings. The language of the

direct-review provisions in section 46110(a) and section

80b-13(a) are almost identical—permitting a party “disclosing

a substantial interest in” (“aggrieved by”) “an order issued by”

the agency to “apply for review of” (“obtain a review of”) the

3

We also cited to multiple earlier examples of the proper

application of the Investment Co. presumption to direct-review

statutes—including the district court order before us—and explained

that our Court’s willingness to exercise jurisdiction on direct review

sub silentio “is consistent with the recognized controlling force of

Investment Company.” NYRSC, 799 F.3d at 1131.

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order in the court of appeals. Compare 49 U.S.C. § 46110(a),

with 15 U.S.C. § 80b-13(a) (language in parentheses). And,

beyond the close linguistic match between these two

provisions, the analysis set forth in NYRSC compels the

conclusion that section 46110(a) includes agency rules within

the term “order,” as there is no evidence that the Congress

intended to vest the district court with jurisdiction of

challenges to DOT rules. 799 F.3d at 1131. This conclusion

is consistent with our precedent and that of our sister circuits

that have endorsed, either sub silentio or through detailed

analysis, the court of appeals’s exclusive jurisdiction to review

DOT or Federal Aviation Administration (FAA) rulemakings

in the first instance. 4 See, e.g., Avera v. Airline Pilots Ass’n

Int’l, 436 F. App’x 969, 973 (11th Cir. 2011); Nw. Airlines,

Inc. v. Goldschmidt, 645 F.2d 1309, 1313–14 (8th Cir. 1981)

(reviewing rule pursuant to 49 U.S.C. § 1486(a) (1980),

section 46110(a)’s predecessor statute); Sima Prods. Corp. v.

McLucas, 612 F.2d 309, 312–14 (7th Cir. 1980) (same); see

also Safari Aviation Inc. v. Garvey, 300 F.3d 1144, 1147 (9th

Cir. 2002) (asserting jurisdiction of FAA rule without

addressing scope of “order” in section 46110); U.S. Air Tour

Ass’n v. FAA, 298 F.3d 997, 1012–13 (D.C. Cir. 2002) (same);

North Carolina v. FAA, 957 F.2d 1125, 1127–28 (4th Cir.

1992) (same for section 1486(a)).

4

The only case NFB identifies where a district court found

jurisdiction of a challenge to an FAA or DOT rule under section

46110(a)—Harrington v. Delta Air Lines, Inc., No. Civ. A. 04–

12558–NMG, 2006 WL 1581752 (D. Mass. Feb. 21,

2006)—involved only a conclusory assertion of jurisdiction with

little underlying analysis in an unpublished decision. Id. at *7 n.4

(“Because Class Plaintiffs challenge a rule, not an order, [section

46110(a)] appears to be inapplicable.”).

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NFB argues that our precedent, including National Mining

Ass’n v. DOL, 292 F.3d 849, 856, 858–59 (D.C. Cir. 2002) (per

curiam), Watts, Safe Extensions and SecurityPoint, supports its

argument that “order” has a more restricted meaning than

enunciated in NYRSC. We are unconvinced. NYRSC

addressed National Mining Ass’n and Watts at length. See

NYRSC, 799 F.3d at 1132–33. We distinguished Watts as

limited to whether SEC’s instruction to its employees not to

respond to a testimonial subpoena was either “reviewable

agency action, or only an ordinary litigation decision.”

NYRSC, 799 F.3d at 1132 (quotation marks omitted).

Because the question facing us in Watts was “whether the

agency acted in its sovereign lawmaking capacity or as a

litigant,” Watts had “no bearing” on the question addressed in

NYRSC—or in this appeal. NYRSC, 799 F.3d at 1132.

Regarding National Mining Ass’n, we noted that the

direct-review provision at issue in that case “did not

encompass orders issued by the agency, but rather a specific

adjudicatory body . . . that had no authority to issue rules.”

NYRSC, 799 F.3d at 1133. Because of the limited scope of the

power granted that body, National Mining Ass’n treated the

review provisions in the Black Lung Benefits Act as wholly

distinct from the review provisions at issue in NYRSC.

NYRSC, 799 F.3d at 1133.

SecurityPoint and Safe Extensions are also

distinguishable. In Safe Extensions, we were asked only to

determine whether an FAA advisory circular met the finality

requirement that we have read into section 46110(a) and

whether the agency decision must “be accompanied by a

record sufficient to permit judicial review” in order to qualify

as a reviewable order. See 509 F.3d at 598–600 (internal

quotation marks omitted). We held that the advisory circular

was final and that alone made it a reviewable order. Id.

SecurityPoint similarly involved an analysis of whether an

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agency letter met section 46110(a)’s finality requirement. See

769 F.3d at 1187. Although SecurityPoint references the

APA definition of “order” at 5 U.S.C. § 551(6), it turned only

on the part of the APA definition of “order” requiring finality;

it did not address the APA’s further elaboration of

“order”—namely, that “order” excludes a rulemaking. See

SecurityPoint, 769 F.3d at 1187. But, as we recognized for

the analogous direct-review provision in NYRSC, the language

of section 46110(a) sets out an “order” requirement separate

from the APA and therefore is not restricted to the APA

definition of “order.” See NYSRC, 799 F.3d at 1132. Thus,

although the “normal default rule” may be that a challenge to

agency action begins in district court, Watts, 482 F.3d at 505

(quotation marks omitted), section 46110(a)’s direct-review

provision removes the Rule from the purview of the district

court and places it within our exclusive jurisdiction. Because

the district court did not err in concluding that it lacked

jurisdiction of NFB’s complaint, we deny NFB’s petition for a

writ of mandamus.

B.

NFB also argues that, even if the district court lacked

jurisdiction, we should still reach the merits of its appeal in

light of the district court’s transfer of the complaint to our court

as a petition for review. But NFB faces a significant

procedural hurdle. Section 46110(a) states that a petition for

review “must be filed not later than 60 days after the order is

issued.” Even assuming the filing of its complaint constituted

a filing of a petition for review, NFB’s petition was

untimely—the Final Rule issued on November 12, 2013 and

NFB filed its complaint on January 22, 2014—eleven days too

late. NFB’s only possible saving grace is that section

46110(a) includes a provision permitting our court to “allow

the petition to be filed after the 60th day” but “only if there are

12

reasonable grounds for not filing by the 60th day.” 49 U.S.C.

§ 46110(a). NFB claims that the uncertainty over whether

“order” in section 46110(a) includes the Final Rule provides

the reasonable grounds necessary to excuse their tardy filing.

We disagree.

As recently discussed in our opinion in Electronic Privacy

Information Center v. FAA (EPIC), No. 15-1075, 2016 WL

2640535 (D.C. Cir. May 10, 2016), we have “rarely found

‘reasonable grounds’ under section 46110(a).” Id. at *2. In

one of those rare instances—Safe Extensions—the FAA, after

issuing a circular to which the aviation industry objected,

informed the industry that it was planning to draft a revised

circular to respond to the industry’s concerns. 509 F.3d at

603. The agency did not, however, issue a revised circular.

Id. Because the agency’s own statements “could have

confused petitioner and others” about whether the order at

issue would be revised, we concluded that the petitioner’s late

filing could be excused. Id. at 603–04. Similarly, in

Paralyzed Veterans of America v. Civil Aeronautics Board, we

found reasonable grounds for an untimely filing under a

predecessor statute to section 46110(a). See 752 F.2d 694,

705 n.82 (D.C. Cir. 1985), rev’d on other grounds sub nom.

DOT v. Paralyzed Veterans of Am., 477 U.S. 597 (1986). The

Civil Aeronautics Board had promulgated a final rule but

“explicitly left its rulemaking docket open in order to receive

additional comments from the public as well as from the

Department of Justice.” Id. The petitioners were “[a]ware

that the rule might be undergoing modification, [were] unable

to predict how extensive any modification would be, [and

therefore] elected to wait until the regulation was in final form

before seeking review.” Id. We concluded that the

petitioners’ delay in challenging the final rule until after the

agency responded to comments “simply served properly to

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exhaust petitioners’ administrative remedies, and to conserve

the resources of both the litigants and this court.” Id.

Nevertheless, we have generally declined to find

reasonable grounds for untimely filings under both section

46110(a) and analogous statutes. See Avia Dynamics, Inc. v.

FAA, 641 F.3d 515, 521 (D.C. Cir. 2011) (“[W]e have

heretofore found ‘reasonable grounds’ only in cases in which

the petitioner attributes the delay to more than simply

ignorance of the order.”). For example, in EPIC, we found

that ambiguity in an agency letter denying a petition for

rulemaking did not constitute reasonable grounds. EPIC,

2016 WL 2640535, at *2. There, we explained that, instead of

“assum[ing] the letter did not finally dismiss its petition,” the

petitioner “should have assumed the opposite and filed

protectively for judicial review within 60 days.” Id.

Investment Co. itself clarified that, “[i]f any doubt as to the

proper forum exists, careful counsel should file suit in both the

court of appeals and the district court or . . . bring suit only in

the court of appeals.” 551 F.2d at 1280. The Investment Co.

presumption was well-known—NFB therefore cannot cry

ignorance of the proper forum in seeking to excuse their

untimely challenge to the Final Rule.

NFB fails to meet our precise standard for reasonable

grounds. As our sister circuits have adeptly explained, a delay

caused by filing a petition or complaint in the wrong court by

itself is not a reasonable ground for failing to meet the statutory

sixty-day deadline. 5 See Corbett v. TSA, 767 F.3d 1171,

5

In Americopters, LLC v. FAA, 441 F.3d 726 (9th Cir. 2006),

which we cited favorably in EPIC, 2016 WL 2640535, at *2, the

Ninth Circuit explained that, under section 46110(a), “a delay

stemming from the filing of a petition or complaint with the wrong

court is not, in general, a reasonable ground for delay.”

Americopters, 441 F.3d at 734. Similarly, the Eleventh Circuit in

14

1178–79 (11th Cir. 2014); Americopters, LLC v. FAA, 441

F.3d 726, 734 (9th Cir. 2006). NFB’s justification for its

untimely filing is also clearly distinguishable from the rare

circumstances where we have previously found reasonable

grounds for delay. In Safe Extensions, the reasonable grounds

for delay was due to the agency’s misstatements about its

future actions. See 509 F.3d at 602–04. And in Paralyzed

Veterans, the reasonable grounds for delay was due to the

petitioners’ attempt to exhaust administrative remedies. 752

F.2d at 705 n.82. NFB had no such excuse—there was no

confusion caused by DOT’s actions or by a desire to further

exhaust administrative remedies. The only “confusion” here

was NFB’s own mistaken reading of section 46110(a). 6 Yet

we have made clear the appropriate recourse when a petitioner

is unsure of the proper forum for filing a challenge to a rule:

“If any doubt as to the proper forum exists, careful counsel

should file suit in both the court of appeals and the district

court or, since there would be no time bar to a proper action in

Corbett v. TSA, 767 F.3d 1171 (11th Cir. 2014), held that a

petitioner’s “dogged prosecution of his petition in the district court is

not a reasonable ground to excuse his failure to file his petition on

time in” the court of appeals. Id. at 1178–79.

6

NFB claims that reasonable grounds should be found in part

because of the strength of its statutory construction argument.

Pet’rs’ Br. 28 (“[T]he Blind Travelers filed when and where they did

because the applicable rules of statutory construction supported that

course, there was no controlling case law on the meaning of ‘order’

in § 46110(a) holding to the contrary, and Respondents themselves

labelled [sic] the Final Rule as a ‘rule’ and not an ‘order.’ ”). If the

scope of a direct-review statute is unclear, petitioners should be

mindful of the advice of Investment Co. and file in both venues.

551 F.2d at 1280. NFB did not heed this warning and their resultant

untimely filing will not be excused simply because they raised

colorable statutory construction arguments.

15

the district court, bring suit only in the court of appeals.”

Investment Co., 551 F.2d at 1280. NFB failed to follow that

path and we will not excuse that failure with the imprimatur of

reasonable grounds for delay.

For the foregoing reasons, we dismiss the petition for

review and deny the petition for a writ of mandamus.

So ordered.