Petition for Writ of Certiorari — Sun Country Airlines, Inc. v. Federal Aviation Administration

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Supreme Court, U.S.

r~ FILED

95-361 SEP - 11995

No. 95-

Orrick OF He CLERK

In THE

Supreme Court of the United States

OCTOBER TERM, 1995

SUN COUNTRY AIRLINES, INC.,

Petitioner,

Vv.

FEDERAL AVIATION ADMINISTRATION .

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

DENNIS NORMAN BARNES

Counsel of Record

THOMAS JAY WOODFORD

MORGAN, LEWIS & BOCKIUS

1800 M Street, N.W.

Washington, D.C. 20036

(202) 467-7060/7159

Counsel for Petitioner

September 1, 1995 Sun Country Airlines, Inc.

SEES TR

WILSON - Epes Printinc Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Whether an administrative agency that adopts a

final rule, and thereby reverses a prior decision by the

agency not to promulgate substantially the same rule,

must provide a reasoned analysis in support of the

change that not only evinces an awareness of the prior

decision but also explains the reasons for taking a differ-

ent course.

2. Whether the Court of Appeals erred in concluding

that the FAA’s 1989 industry study on flight attendant

duty times prompted the agency to rethink the premises

underlying its prior decision not to promulgate essen-

tially the same flight attendant duty period and rest

requirements.

LIST OF PARTIES TO THE PROCEEDING

PURSUANT TO RULES 14.1(b) AND 29.1

Pursuant to Supreme Court Rule 14.1(b), Petitioner

Sun Country Airlines, Inc. certifies that the names of all

parties to this proceeding appear in the caption of this

petition for a writ of certiorari.

Pursuant to Supreme Court Rule 29.1, Petitioner Sun

Country Airlines, Inc. certifies that it is a charter air

carrier certificated by the FAA under Part 121 of the

Federal Aviation Regulations. Sun Country does not

have any outstanding publicly-traded securities, nor does

Sun Country have a publicly-owned parent, subsidiary,

or affiliate.

ee em

TABLE OF CONTENTS

QUESTIONS PRESENTED ..........2.....---..20---cseceeceescoesenneees

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gk EE TNE eu nee eee Oe De NTT OTT

STATEMENT OF JURISDICTION ...........000.202...2--.22-

REGULATIONS INVOLVED ....02o2..2n....2...eeeecsscceeceeeeeeeees

STATEMENT OF THE CASE ....00.2202.........ccscsseecseeeeees

II.

STATUTORY AND REGULATORY BACK-

RRC NERS SES RAEI lee

BL ne UCR TENN ashi nan se

ERE LER TES SAREE

C. The March 13, 1991 Hearing .............................

III vices ttilssinannisirninicstinenhdeesctinsnninienieceennes

PROCEEDINGS BEFORE THE COURT OF

Sy | 8 SERCREER Reese of Se os Sh Seem a

REASONS FOR GRANTING THE PETITION ......... *

Il.

THE COURT OF APPEALS’ DECISION SERI-

OUSLY UNDERMINES THE ARBITRARY

AND CAPRICIOUS STANDARD ARTICU-

LATED BY THIS COURT IN STATE FARM..

THE COURT OF APPEALS’ DECISION CON-

FLICTS WITH DECISIONS OF THE FIRST,

SIXTH AND D.C. CIRCUITS .............................

PEI victcnissciisiwihstiiibittenaticbientibih tha ditibicninaninicabaesities

on nm Ww W

TABLE OF AUTHORITIES

CASES Page

Citizens Awareness Network v. FCC, 59 F.3d 284

§ i B.y pei eae OR 13, 17, 18

City of Newport, Ky. v. Iacobucci, 479 U.S. 92

(1986), reh’g denied, 479 U.S. 1047 (1987)........ 17

Immigration and Naturalization Service v. Hector,

ry, Ri? ys eRe 17

Motor Vehicle Manufacturers Association V. State

Farm Mutual Auto. Ins. Co., 463 U.S. 29 (1983) .. 11, 13,

14, 16,17

Palmer v. BRG of Georgia, 498 U.S. 46 (1990) ...... 17

Radio Ass’n on Defending Airwave Rights, Inc. V.

DOT, 47 F.8d 794 (6th Cir. 1995) ...........0....... 13, 18, 19

Sun Country Airlines, Inc. v. FAA, 56 F.3d 1531

CS Ar ee 1

United Video, Inc. v. FCC, 890 F.2d 1173 (D.C.

3 RE: URE RACES erate tes ot Din areinerc aS a Pcs 18, 19, 20

Virginia Petroleum Jobbers Association v. FPC,

Se Te CA, BRR re rise eisisscetcsenecinines 9

Washington Metropolitan Area Transit Commis-

sion V. Holiday Tours, Inc., 559 F.2d 841 (D.C.

CGS SPEED sasicecicedenctenivesandenscliadniabieneadintiaiees Sass 9

STATUTES

BB Kis REBEL) 2s csssrsisicicceincessicnissscindatib a Maressetmice 2

Federal Aviation Act of 1958 (recodified without

substantive change by Pub. L. No. 103-272, 108

Stat. 745-1401 (July 5, 1994) )

49 U.S.C.A. § 40102(a) (8) (West Supp. 1995).. 3

49 U.S.C.A. § 42112 (West Supp. 1995) —.......... 3

49 U.S.C.A. § 44701(a) (4) (West Supp. 1995). 3

49 U.S.C.A. § 46110 (West Supp. 1995) —.......... 2

RULES AND REGULATIONS

50 Fed. Reg. 25252-253 (June 18, 1985) —....000000000..... 4

50 Fed. Reg. 31724 (Aug. 6, 1985) _.....2..2002 oe 4

50 Fed. Reg. 6165 (Feb. 14, 1985) —.......222.000000222e. 4

58 Fed. Reg. 17024-17037 (March 31, 1993) _........... passim

59 Fed. Reg. 42974-42994 (August 19, 1994) _.......... passim

ememnentin | ON ert

—

ce RR em

TABLE OF AUTHORITIES—Continued

MISCELLANEOUS Page

In the Matter of the Petition of The Association

of Flight Attendants and the Joint Council of

Flight Attendant Unions to Amend Parts 121

and 135 of Federal Aviation Regulations, Docket

No. 24397, Denial of Petition (January 23,

OND cisinitlads eiinics clhcakcinsteabelanpiiabilbihcties Dbiccinrainthabaialanaae 5, 15

FAA, REPORT ON THE STUDY OF CURRENT INDUS-

TRY PRACTICE—FLIGHT ATTENDANT FLIGHT,

DuTY, AND REST TIMES (September 12, 1989)... 3, 6

Flight Attendant Duty Time Limitations: Hearing

Before the Subcommittee on Aviation of the

House Committee on Public Works And Trans-

portation, 102nd Cong., Ist Sess. 8 (March 13,

1991) (testimony of Anthony J. Broderick,

Assoc. Admin. for Reg. and Cert., FAA) ............ 6, 7, 15

er ee 0

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

No. 95-

SUN COUNTRY AIRLINES, INC.,

a Petitioner,

FEDERAL AVIATION ADMINISTRATION,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

Sun Country Airlines, Inc. respectfully petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the District of Columbia Cir-

cuit in this case.

OPINIONS BELOW

The opinion of the Court of Appeals (App. la-3a) is

referenced in a “Table of Decisions Without Reported

Opinions” in the Federal Reporter. See 56 F.3d 1531.

The final rule of the Federal Aviation Administration

(“FAA”) promulgated in Docket No. 27229, “Flight

Attendant Duty Period Limitations and Rest Require-

ments,” was published at 59 Fed. Reg. 42974-42994

(August 19, 1994) (the “Final Rule”) (App. 4a-85a).

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals was entered on

May 30, 1995 (App. la). The Court of Appeals denied

Sun Country’s timely petition for rehearing and sugges-

tion for rehearing in banc on July 28, 1995 (App. 86a).

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1) and 49 U.S.C. § 46110(e).

The Court of Appeals had jurisdiction over the pro-

ceeding below pursuant to 49 U.S.C. § 46110.

REGULATIONS INVOLVED

The Final Rule will be codified by amending 14 C.F.R.

Parts 121, 125 and 135. See Final Rule, 59 Fed. Reg.

42974-42994 (August 19, 1994) (App. 4a-85a).

STATEMENT OF THE CASE

This case involves regulations promulgated by the FAA

in its Docket No. 27229, Flight Attendant Duty Period

Limitations and Rest Requirements, 59 Fed. Reg. 42974-

42994 (August 19, 1994) (App. 4a-85a). The Final

Rule requires that air carriers establish duty period

scheduling limitations and rest requirements for flight

attendants.

Petitioner Sun Country Airlines, Inc. (“Sun Country”)

is a charter air carrier certificated by the FAA under Part

121 of the Federal Aviation Regulations (“FAR”). Sun

Country employs over 300 flight attendants. Sun Country

was a participant, and submitted comments, in Docket No.

27229. Sun Country is subject to the new regulations.

I. STATUTORY AND REGULATORY BACKGROUND.

The Administrator of the FAA is empowered to _pre-

scribe “reasonable rules and regulations governing, in

the interest of safety, the maximum hours or periods of

service of airmen, and other employees” of regulated

carriers. The term “airman” includes (1) flight crew-

members, i.e., pilots, mechanics, engineers or other mem-

bers of the crew engaged in the navigation of an aircraft

while aloft, (2) ground mechanics, (3) aircraft dispatch-

ers and (4) air traffic controllers.’

Flight time limitations for pilots were first mandated

by Decision 83 of the National Labor Relations Board

(May 10, 1934), which was incorporated into section 401

of the Civil Aeronautics Act of 1938 and section 401(k)

of the 1958 Act.* Duty limitations for “airmen” are cur-

rently set forth in the FAR. Flight attendants are not air-

men or flight crewmembers engaged in the navigation of

an aircraft, but are considered “other employees” by the

FAA for the purpose of prescribing duty limitations “in

the interest of safety.” *

A. The Prior Rulemaking.

In late 1984 and early 1985, the FAA received two

petitions for rulemaking seeking promulgation of flight

attendant duty period limitations and rest requirements

essentially the same as those adopted by the FAA in

1 Federal Aviation Act of 1958 (the “1958 Act’), Pub. L. No.

85-726, § 601(a) (5), 72 Stat. 731, 775 (previously codified at 49

U.S.C. App. § 1421(a) (5) (1988)) (current version at 49 U.S.C.A.

§ 44701(a) (4) (West Supp. 1995). Pub. L. No. 103-272 (July 5,

1994) mandated revision and codification of numerous transporta-

tion related statutes “without substantive change.” 108 Stat. 745.

Upon recodification, the word “reasonable” in § 601 of the 1958

Act (previously 49 App. U.S.C. § 1421(a)) was omitted as surplus.

108 Stat. 1185. The current official United States Code for Title

49 is not available at this time. All citations herein to Title 49

are to United States Code Annotated (West Supp. 1995).

2 49 U.S.C.A. § 40102(a) (8) (West Supp. 1995).

#49 U.S.C.A. § 42112 (West Supp. 1995).

458 Fed. Reg. 17025 (App. 139a); FEDERAL AVIATION ADMINIS-

TRATION, REPORT ON THE STUDY OF CURRENT INDUSTRY PRACTICE:

FLIGHT ATTENDANT FLIGHT, DUTY, AND REST TIMES 2-2 (Septem-

ber 12, 1989).

Docket No. 27229. On December 19, 1984, a petition

for rulemaking was filed by the Association of Fight

Attendants (“AFA”) seeking flight attendant flight and

duty time limitations equivalent to those applying to flight

crewmembers (i.e. pilots, etc.), except insofar as the

flight crewmember regulations allow longer than eight

hours of daily flight time in a single duty period and allow

for any rest period shorter than nine hours.” A petition

filed on April 23, 1985 by the Joint Council of Flight

Attendant Unions (“JCFA”) sought flight attendant duty

period limitations of 14 hours for international flights

and 13 hours for domestic flights, with varying rest

requirements.°

Both the AFA and JCFA petitions contended that duty

period limitations and rest requirements were necessary to

protect flight attendants from extr2mely long and exhaust-

ing duty periods, which may lead to fatigue and a dimin-

ished ability to perform safety-related functions. NPRM,

59 Fed. Reg. 17024 (App. 136a). Due to the common

subject matter of the two petitions, they were considered

jointly in FAA Docket No. 24397. /d.

Numerous parties submitted comments in support of

the petition, including the AFA, union members of JCFA,

individual flight attendants, the National Transportation

Safety Board (“NTSB”), the Air Line Pilots Association

(“ALPA”), the International Airline Passengers Associa-

tion (“IAPA”), the Director of Aerospace Medicine at

Wright State University (“Wright State”), and several

members of Congress. The commenters generally agreed

that fatigue affects performance, but did not cite any

studies directly related to flight attendants. /d. (App.

136a-137a).

5 See 58 Fed. Reg. 17024 (App. 135a-136a); 50 Fed. Reg. 6165

(Feb. 14, 1985); 50 Fed. Reg. 25252-253 (June 18, 1985).

6 See 58 Fed. Reg. 17024 (App. 136a) ; 50 Fed. Reg. 31724 (Aug.

6, 1985); 50 Fed. Reg. 25252-253 (June 18, 1985).

re BEST AVAIL

On January 23, 1989, over four years after the AFA

petition for rulemaking was filed, the FAA issued a Denial

of Rulemaking, finding that “the information, views, and

arguments contained in the two petitions do not warrant

the action sought.” Jn the Matter of the Petition of The

Association of Flight Attendants and the Joint Council

of Flight Attendant Unions to Amend Parts 121 and 135

of Federal Aviation Regulations, Docket No. 24397,

Denial of Petition, p. 4 (the “January 23, 1989 FAA

Decision”) (App. 9la). The FAA specifically deter-

mined,

[T]here is no empirical evidence that shows any cor-

relation between flight attendant duty time, flight

attendant safety duties, and risk to passengers. For

that reason there is no reasonable method to deter-

mine requirements for cost beneficial flight attendant

duty times directly related to safety. There is no

showing that the unrelated instances cited in a few

comments of lengthy flight attendant duty time either

were the result of work rules mandated by the com-

pany, or were systematic throughout the industry.

Nor was there a showing that these instances had

an adverse impact on safety. The cost to the carriers

of administering the proposed rules, and to the FAA

in enforcing them, thus cannot be justified based on

any empirical or reasonably estimated safety benefit.

Id. (App. 91a). The FAA concluded that the requested

rulemaking was “not in the public interest.” Jd. (App.

92a).

On January 24, 1989, H.R. 638, a bill providing for

the establishment of the flight attendant duty period limi-

tations and rest requirements was introduced in the 102nd

Congress. At a hearing before the Subcommittee on

Aviation of the House Committee on Public Works and

Transportation on May 17, 1989, the FAA Associate

Administrator for Regulation and Certification advised

the subcommittee of the agency’s intent to initiate new

studies of flight attendant scheduling practices. NPRM,

58 Fed. Reg. 17025 (App. 138a).

B. The Industry Study.

Four months following its testimony on H.R. 638, the

FAA issued an industry study on flight attendant schedul-

ing practices. FAA, REPORT ON THE STUDY OF CURRENT

INDUSTRY PRACTICE—Flight ATTENDANT FLIGHT, DuTy,

AND REST TIMES (September 12, 1989) (the “Industry

Study”). The Industry Study undertook a comprehensive

review of U.S. air carrier flight attendant scheduling prac-

tices and actual work hours of flight attendants. The data

collected for the Industry Study indicated that certain

types of problems related to flight attendant duty hours

may occur more frequently in certain industry segments.

The Industry Study also noted that a variety of mecha-

nisms were in place throughout the industry to respond

to such problems. NPRM, 58 Fed. Reg. 17025 (App.

138a). No later analysis or compilation of relevant data

regarding flight attendant scheduling practices since the

1989 Industry Study has been undertaken by the FAA.

C. The March 13, 1991 Hearing.

Flight attendant duty limitations and rest requirements

continued to be the subject of congressional debate. On

March 13, 1991, eighteen months after the Industry Study

was issued, the FAA participated in a hearing held by

the Aviation Subcommittee of the House Committee on

Public Works and Transportation on the specific subject

of flight attendant duty and rest. See Flight Attendant

Duty Time Limitations: Hearing Before the Subcommit-

tee on Aviation of the House Committee on Public Works

And Transportation, 102nd Cong., Ist Sess. 8 (March

13, 1991) (testimony of Anthony J. Broderick, Assoc.

Admin. for Reg. and Cert., FAA) (the “March 13,

1991 FAA Testimony”) (App. 93a-132a). The FAA

did not recommend rulemaking at that hearing.’ The

FAA stated that the data reported by the Industry Study

were not “dispositive”, but that “Should research results

or other data suggest in the future that a regulatory solu-

tion is appropriate, [the agency would] address that possi-

bility after reviewing that data.” March 13, 1991 FAA

Testimony, at 8 (App. 95a-96a). The FAA specifically

noted that “[t]he preponderance of flight attendant sched-

ules appear[ed] to be well within a zone of reasonable-

ness,” while “[s]ome occasional work practices .. . ap-

pear[ed] to be excessive.” Id. (App. 95a). The FAA

further observed,

[T]here are no readily quantifiable safety benefits

that we can identify to offset the cost [of flight at-

tendant duty limitations]. This is a fact which we

noted in denying the flight attendant union positions

[in 1989], and it remains undisputed today.

Data from 1975 through 1989 showed that ap-

proximately 38,000 air carrier passengers and sev-

eral thousand additional crew were aboard aircraft

involved in evacuation or evacuation-related occur-

rences. We have been unable to identify a single

incident in that array, however, that fairly could be

said to have adversely been affected by flight attend-

ant fatigue. In other words, the data do not identify

flight attendant fatigue as a factor.

*k * * *

In this instance. based on the absence of demon-

strable, quantifiable benefits to the traveling public

that would offset the clear costs of the rule, the Ad-

ministration has concluded that rulemaking is not

warranted.

March 13, 1991 FAA Testimony, p. 8 (App. 95a-96a).

7 Final Rule, 59 Fed. Reg. 42974 (App. 8a) ; NPRM, 58 Fed. Reg.

17025 (App. 139a); March 13, 1991 FAA Testimony, 8-9 (App.

95a-96a).

D. The Final Rule.

Eighteen months after the FAA testified before Con-

gress that the Industry Study produced no data or con-

clusions that supported rulemaking, the FAA issued the

NPRM in Docket No. 27229, stating, “the results of the

study suggest the need for regulatory action, which is

provided by this NPRM.” See NPRM, 58 Fed. Reg.

17024, 17025 (App. 138a). The NPRM began with a

brief overview of the history of previous attempts to im-

plement flight attendant duty limitations and rest require-

ments. The NPRM mentioned, but did not discuss, the

two prior petitions filed by the AFA and JCFA in 1984

and 1985, some of the comments filed in support of the

petitions in Docket No. 24397, and the FAA’s decision

to deny the rulemaking petitions. /d. at 17024-025 (App.

135a-138a).

The FAA received fifty-one comments in response to

the NPRM. Commenters that supported adoption of flight

attendant duty period limitations and rest requirements

in Docket No. 27229 included the Coalition of Flight

Attendant Unions (comprised of the AFA and previous

members of JCFA), individual flight attendants, the

NTSB, ALPA, IAPA, Wright State, and a member of

Congress who strongly supported the comments of the

Coalition of Flight Attendant Unions. Final Rule, 59

Fed. Reg. 42975 (App. 8a-9a); Index of FAA Docket

No. 27229.

The FAA issued the Final Rule on August 19, 1994.

The Final Rule requires that scheduled duty periods for

flight attendants may not exceed 14 hours. Two-hour in-

crements of additional duty time may be gained if the

carrier augments the required crew complement by one

additional flight attendant for each two-hour period

gained up to the allowed maximum duty period of 18

hours, or 20 hours if the scheduled duty period includes

one or more flights that take off or land outside the 48

contiguous states. Final Rule, 59 Fed. Reg. 42977-978

(App. 17a-2la). The Final Rule also requires a mini-

mum rest period of nine hours for a duty period assign-

ment of 14 hours or less, and 12 hours if the duty period

exceeds 14 hours. Final Rule, 59 Fed. Reg. 42979-980

(App. 24a-29a).

The Final Rule provides air carriers the option of ap-

plying flight crewmember (i.e. pilot) flight, duty and rest

requirements to flight attendants. An air carrier electing

this option must establish written procedures for applying

the requirements. Such procedures must be approved by

the Administrator of the FAA prior to implementation

and must be applied to all flight attendants used in the

air Carrier’s operations. Final Rule, 59 Fed. Reg. 42975-

976 (App. 10a-14a).

II. PROCEEDINGS BEFORE THE COURT OF APPEALS.

On September 1, 1994, Sun Country filed a petition

for review of the Final Rule in the Court of Appeals. To

maintain the status quo pending outcome of judicial re-

view before the Court of Appeals, Sun Country filed an

emergency motion for stay of the compliance date of the

Final Rule with the court on February 1, 1995, based

upon the four-prong test for issuance of a stay enunciated

in Virginia Petroleum Jobbers Assn v. FPC, 259 F.2d

921, 925 (D.C. Cir. 1958) and Washington Metropolitan

Area Transit Comm'n. Vv. Holiday Tours, Inc., 559 F.2d

841, 843 (D.C. Cir. 1977). On February 13, 1995, the

Court of Appeals entered an order staying the compliance

date of the Final Rule and expediting consideration of the

case.© The Court of Appeals heard oral argument on

® The Court of Appeals expedited the proceeding on its own

motion without explanation, although perceived safety considera-

tions of the Final Rule may have contributed to the court’s decision.

The FAA, in response to Sun Country’s emergency motion for

stay, unsuccessfully argued that Sun Country’s failure to seek

expedited action from the Court of Appeals rendered its claim of

irreparable harm specious. Accordingly, Sun Country, in the pres-

May 19, 1995, and issued its decision denying Sun Coun-

try’s petition for review on May 30, 1995 (App. la-3a).

Before the Court of Appeals, Sun Country maintained

that the FAA’s promulgation of the Final Rule, which

represented a reversal of its decision in 1989 not to prom-

ulgate essentially the same flight attendant duty period

limitations and rest requirements, was arbitrary and

capricious because the agency did not sufficiently articu-

late a reasoned analysis in support of the change of posi-

tion. Sun Country specifically argued in its briefs that

the FAA Industry Study could not provide the necessary

factual predicate for the Final Rule because (1) the In-

dustry Study was flawed according to its terms and (2)

the FAA as late as March 1991 testified before Congress

that the data reported by the Industry Study did not

support rulemaking.”

In its May 30, 1995 opinion, the Court concluded that

the FAA, in its Docket No. 27229, adequately carried

its burden to supply a reasoned analysis in support of

the agency’s change of position. In support of its deci-

sion, the Court found:

The FAA’s notice of proposed rulemaking, and final

rule, both make clear that the agency’s 1989 study

of flight attendant flight, duty, and rest times in the

air carrier industry prompted it to rethink its earlier

decision. Significantly, when the FAA rejected pro-

posed flight attendant duty period scheduling rules

in 1989, it specifically noted the absence of any clear

information concerning flight attendant duty time.

The 1989 study furnished the information that was

previously missing and caused the agency to rethink

the premises underlying its original position. Thus,

it is clear from the record and from the agency’s

ent proceeding, will not object if respondent FAA seeks expedited

consideration of any aspect of this case.

® See Sun Country Final Brief, pp. 13-15, n.8 (April 21, 1995);

Sun Country Reply Brief, pp. 12-15 (April 18, 1995).

Chl patina A tts so

stated rationale that it adopted a new position based

on new information.

While the FAA ideally could have explained its

view more fully, it is a well-established principle of

administrative law that we may “uphold a decision

of less than ideal clarity if the agency’s path may be

reasonably discerned.” Here, the agency’s path is

tolerably discernable... . :

Slip op., pp. 1-2 (App. 2a) (internal citations omitted).

The Court of Appeals denied Sun Country’s timely

petition for rehearing and suggestion for rehearing in

banc on July 28, 1995 (App. 86a). To preserve the

status quo pending a petition for certiorari, Sun Country

filed a motion for a 30-day stay of mandate with the

Court of Appeals on August 3, 1995, which was denied

on August 24, 1995. The Court of Appeals issued its

mandate on August 25, 1995.

REASONS FOR GRANTING THE PETITION

The' Supreme Court’s decision in State Farm requires

that an agency which reverses a prior decision must state

a “reasoned analysis” for the change as part of the

agency’s articulation of a “satisfactory explanation for

its action including a rational connection between the

facts found and the choice made.” Motor Vehicle Mfrs.

Ass'n Vv. State Farm Mut, Auto. Ins. Co., 463 U.S. 29,

42-43 (1983).

In the administrative proceeding below, the FAA re-

versed its prior decision not to promulgate essentially the

same flight attendant duty period and rest regulations that

were adopted in Docket No. 27229. Although the FAA

mentioned its prior inconsistent position, the FAA pro-

vided no reasoned analysis that explained the agency’s

reasons for taking a different course. Further clarification

of the Supreme Court’s decision in State Farm is needed

to ensure that administrative agencies confront reversals

of policy squarely and explain why the departure is

reasonable.

In its decision issued May 30, 1995, the Court of Ap-

peals concluded that the FAA’s 1989 Industry Study of

flight attendant duty times prompted the agency to re-

think its prior decision not to promulgate essentially the

same flight attendant duty period and rest requirements.

The FAA’s March 1991 testimony before Congress, how-

ever, makes clear that the agency believed the Industry

Study provided no new data or information that would

justify adoption of the flight attendant duty regulations

then under consideration. Notwithstanding the Court of

Appeals’ conclusion, the administrative record in this

proceeding proves that the agency’s stated rationale for

the reversal is wholly inaccurate and that the Industry

Study cannot provide the factual predicate for the re-

quired rational connection between the facts and the

choice made.

The error committed by the Court of Appeals em-

phasizes the FAA’s lack of a stated rationale for reversal

of the agency’s 1989 denial of rulemaking. The Court

of Appeals’ use of the “reasonably discernible” rubric as

a substitute for the agency’s own reasoned analysis emas-

culates the arbitrary and capricious standard of the Ad-

ministrative Procedure Act (the “APA”). In contraven-

tion of this Court’s pronouncement in State Farm, the

Court of Appeals attempted to make up for the agency’s

deficient analysis and supplied a basis for the FAA’s ac-

tions that the agency did not itself articulate and, more-

over, one which is proven erroneous by the administrative

record.

Clarification of the Supreme Court’s decision in State

Farm is needed to ensure consistent application of the

arbitrary and capricious test as it pertains to reversals of

agency positions. While State Farm teaches that an agency

reversal requires a reasoned analysis for the change, the

eee

opinion provides little guidance as to what may consti-

tute a reasoned analysis.

In addition, the Court of Appeals’ decision in this pro-

ceeding is in apparent conflict with the First Circuit’s

decision in Citizens Awareness Network, Inc. v. FCC,

59 F.3d 284 (Ist Cir. 1995), the Sixth Circuit’s decision

in Radio Ass’n on Defending Airwave Rights, Inc. Vv.

DOT, 47 F.3d 794 (6th Cir. 1995) and the D.C. Cir-

cuit’s decision in United Video, Inc. v. FCC, 890 F.2d

1173 (D.C. Cir. 1989).

The Court of Appeals’ gross misapplication of the

standard enunciated by the Supreme Court for reviewing

agency reversals of position, combined with the apparent

conflict between the Court of Appeals’ decision and the

decisions of other Circuit Courts of Appeals, presents a

substantial question deserving of Supreme Court review

and may warrant summary disposition under Supreme

Court Rule 16.1.

I. THE COURT OF APPEALS’ DECISION SERIOUSLY

UNDERMINES THE ARBITRARY AND CAPRI-

CIOUS STANDARD ARTICULATED BY THIS

COURT IN STATE FARM.

In State Farm, this Court considered an agency’s revo-

cation of a regulation promuigated under a_ previous

administration. The Court determined that, in such an

instance, “an agency changing its course by rescinding

a rule is obligated to supply a reasoned analysis for the

change beyond that which may be required when an

agency does not act in the first instance.” /d. at 42. This.

burden of additional explanation, however, does not in-

tensify the scope of review under the arbitrary and

capricious test. Jd. at 41, 44. Any agency, even one

reversing a course of conduct, must “examine the relevant

data and articulate a satisfactory explanation for its ac-

tion including a ‘rational connection between the facts

found and the choice made.’” /d. at 43 (quoting Burling-

ton Truck Lines v. United States, 371 U.S. 156, 168

(1962)). One aspect of the required satisfactory explan-

ation, however, is a stated justification for any reversal

of position. /d. at 52.

In January 1989, and again in March 1991, the FAA

determined that there was no warrant for the very kind

of duty period limitations and rest requirements which

were adopted by the agency in 1994. Throughout the

administrative record in Docket No. 27229, the FAA

merely reiterated data and arguments that were presented

to, and rejected by, the agency long before the current

rulemaking was initiated. The NPRM and Final Rule

simply mentioned the FAA’s prior refusals to establish

essentially the same flight attendant duty time limitations

supported by essentially the same arguments made by

mostly the same commenters, but provided no reasoned

analysis for the different conclusion in 1994. Given this

context, the FAA should have explained what had hap-

pened in five years to justify this complete reversal or, if

nothing had happened, why the earlier determination had

been wrong from the start.

Rather than remanding the Final Rule to the FAA for

its failure to supply a reasoned analysis for the change,

the Court of Appeals relied upon certain language in

State Farm which allows a reviewing court to uphold a

decision of “less than ideal clarity” if the agency’s path

may be “reasonably discerned.” App. 2a. The Court of

Appeals determined that the Final Rule and NPRM both

make clear that the FAA’s 1989 Industry Study provided

new information that prompted it to rethink its earlier

decision. The Court of Appeals concluded that “While

the FAA ideally could have explained its view more fully,

. . . the agency’s path [was] tolerably discernable.”

App. 2a.

The Court of Appeals ignored the fact, explicit in the

administrative record, that, on March 13, 1991, more

than eighteen months after issuance of the Industry Study,

ema Cian

the FAA did not recommend rulemaking for flight attend-

ant duty period limitations during testimony given to the

Aviation Subcommittee of the House Committee on Pub-

lic Works and Transportation. Final Rule, 59 Fed. Reg.

42974 (App. 8a); NPRM, 58 Fed. Reg. 17025 (App.

139a); March 13, 1991 FAA Testimony, p. 8 (App.

95a-96a). Examination of the actual transcript of the

testimony given to that subcommittee by Mr. Anthony J.

Broderick, FAA Associate Administrator for Regulation

and Certification, confirms that the FAA found no em-

pirical data reported in the September 1989 Industry

Study that supported adoption of flight attendant duty

period limitations and rest requirements then under con-

sideration. March 13, 1991 FAA Testimony, p. 8 (App.

95a). This forthright testimony makes clear that the re-

sults of the Industry Study led the FAA in 1991 to reach

the same conclusion that it reached on January 23, 1989,

namely that rulemaking was not warranted. /d. (App.

96a); January 23, 1989 FAA Decision, p. 4 (App. 91a).

The March 13, 1991 FAA Testimony proves that the

1989 Industry Study cannot provide the necessary empir-

ical foundation for the 1994 final rule, and refutes both

the position of the FAA and the conclusion of the Court

of Appeais that the 1989 Industry Study provided new

information that was previously missing and caused the

agency in 1994 to rethink the premises underlying its

original position. No data analysis of flight attendant

duty time limitations subsequent to the 1989 Industry

Study is known to exist, and certainly no such informa-

tion appears in the administrative record of FAA Docket

No. 27229 that would support the Court of Appeals’

incredible conclusion.

Sun Country does not dispute that the 1989 Industry

Study, in the absence of a prior contrary decision, might

support adoption of the Final Rule by providing the

necessary factual foundation for a “rational connection

between the facts found and the choice made.” But that

is not the case here. The FAA determined in January

1989 not to promulgate essentially the same regulations.

Moreover, the agency impeached the results of the Indus-

try Study in March 1991 when it reaffirmed its position

that rulemaking was not warranted. The September 1989

Industry Study, thus, by itself cannot provide the neces-

sary factual predicate for the rational connection required

under the arbitrary and capricious standard.

If the Industry Study could not have prompted the

agency to issue the Final Rule, something else must have.

If in fact the only thing that has happened since 1991 is

that the FAA, under a new administration, has reached

a new interpretation of the same data, it is not stated

in the administrative record. The FAA has declined to

confront its prior decision that directly conflicts with the

agency’s promulgation of the Final Rule.

In State Farm, the Supreme Court admonished review-

ing courts against attempting to make up for deficiencies

in agency analysis by supplying reasoned explanations

that agencies have not themselves given. State Farm, 463

U.S. at 43. Further clarification of the arbitrary and

Capricious test, as it relates to agency reversals, is needed

because this admonition in practice often runs counter

to the next sentence in State Farm, which states that an

opinion of less than ideal clarity will be upheld if the

agency’s path may reasonably be discerned. Jd. The

error committed by the Court of Appeals in this case em-

phasizes the conflict. The Court of Appeals has com-

mitted the exact error against which the Court cautioned

in State Farm. The FAA provided no reasoned explana-

tion for the change, and the Court of Appeals attempted

to provide its own explanation based on what the court

determined could reasonably be discerned. What the

court discerned, however, is erroneous and contrary to the

administrative record.

The Court of Appeals’ use of the “reasonably discern-

able” rubric to sanction the FAA’s conduct is a gross

misapplication of language in State Farm that severely

undermines the requirement that an agency changing its

course supply a reasoned analysis for the change. The

Court of Appeals’ decision, in effect, declares that an

agency which reverses a prior decision must do no more

than provide a level of analysis for the new decision that

would support the decision as if it were one in the first

instance, i.e. no contrary prior decision existed. Gone is

the requirement of State Farm and the APA that the

agency is obliged to supply a “reasoned analysis” for the

reversal itself. See State Farm, 463 U.S. at 42. The

Court Appeals’ approval of the FAA’s reversal of posi-

tion despite the absence of a valid rationale for the

change represents a serious and troublesome departure

from State Farm and the arbitrary and capricious stand-

ard of the APA and merits review by this Court. |

The gross misapplication of the arbitrary and caprici-

ous standard in this proceeding, combined with the clear

and undeniable error committed by the Court of Appeals

in interpreting the administrative record, make this case

particularly appropriate for summary disposition on the

merits under Supreme Court Rule 16.1. See, e.g., Palmer

v. BRG of Georgia, 498 U.S. 46 (1990); City of New-

port, Ky. v. lacobucci, 479 U.S. 92 (1986), reh’g denied,

479 U.S. 1047 (1987); Immigration and Naturalization

Service V. Hector, 479 U.S. 85 (1986).

II. THE COURT OF APPEALS’ DECISION CONFLICTS

WITH DECISIONS OF THE FIRST, SIXTH AND

D.C. CIRCUITS.

The Court of Appeals’ decision in this case is in ap-

parent conflict with the decisions of the First and Sixth

Circuit Courts of Appeals as well as the D.C. Circuit.

The First Circuit has held that “when an administrative

agency departs significantly from its own precedent, ‘it

must confront the issue squarely and explain why the

departure is reasonable.’” Citizens Awareness Network,

Inc. v. FCC, 59 F.3d 284, 290 (1st Cir. 1995) (citation

omitted). It is not enough that an agency’s subsequent

decision stand on its own in terms of factual support and

analysis. The agency must explain the reason for the

departure. The burden is not a difficult one to meet, but

a court cannot supply a reason the agency has not itself

given. 7d. at 291.

In Citizens Awareness Network, the First Circuit con-

sidered an agency’s reversal of regulations, accomplished

by circulation of two internal staff memoranda. Notwith-

standing the lack of notice and opportunity for comment

provided to the public, the First Circuit found most trou-

bling the agency’s

failure to provide in those memos, or anywhere else,

any justification or reasoning whatsoever for the

change. The memos did not set forth any new facts,

fresh information, or changed circumstances which

would counsel the shift. Nor did they provide any

legal analysis of how the new policy comported with,

or at least did not conflict with, existing agency

regulations.

Id. As the FCC did not confront its change in position

in Citizens Awareness Network, the FAA in this proceed-

ing provided no straightforward and valid explanation

that squarely confronted the agency’s reversal of its 1989

decision not to promulgate essentially the same final rule.

The First Circuit’s decision in Citizens Awareness Net-

work thus conflicts with the Court of Appeals’ application

of the arbitrary and capricious test in this proceeding.

The decision of the United States Court of Appeals for

the Sixth Circuit in Radio Ass’n on Defending Airwave

Rights, Inc. v. DOT, 47 F.3d 794 (6th Cir. 1995), dem-

onstrates that an agency which adopts a regulation de-

spite a prior decision not to promulgate the same rule

must not only acknowledge the prior inconsistent posi-

tion but also must provide a reasoned analysis that ex-

plains the departure from agency precedent. In that case,

the Sixth Circuit reviewed the promulgation of regulations

by the Federal Highway Administration (“FHWA”)

banning the use of radar detectors in commercial motor

vehicles (“CMVs”). The court noted that FHWA had

denied prior petitions for rulemaking for similar regula-

tions, because the agency was concerned with federalism

and believed the problem was not national in scope.

Airwave Rights, 47 F.3d at 798.

The Sixth Circuit noted that the FHWA, in reversing

its prior decision not to promulgate a radar detector ban

for CMVs, had “analyzed the effects of the rule on the

policy-making discretion of the states” and “concluded

that ‘Consistent with federalism principles, the final rule

provides for a federal ban, but provides significant discre-

tion for States in their enforcement.’” Airwave Rights,

47 F.3d at 801. FHWA further explained that its previ-

ous federalism concerns were erroneous because it had

now determined that the safety problem really was na-

tional in scope. Airwave Rights, 47 F.3d at 805. The

Sixth Circuit found that FHWA had provided a sufficient

reasoned analysis because it had “properly changed its

view of its federalism concern regarding the ban based on

a fuller understanding of the national scope of the safety

sue.... id.

In United Video, Inc. v. FCC, 890 F.2d 1173 (D.C.

Cir. 1989), the District of Columbia Court of Appeals

considered the FCC’s reinstatement of its “syndicated

exclusivity,” or “syndex,” rules. The court observed.

The Commission’s report reviews in detail the history

of the regulation of cable, including, in particular,

the 1980 decision to eliminate syndex rules. The re-

port notes several ways in which the Commission

now feels the 1980 decision to have been inadequate

. . . . The Commission also faults its earlier studies

for focusing on the effects repeal of syndex would

have on individual stations . . . The Commission’s

report in toto suggests that it undertook a thorough

review of the syndex question and came to a new

result with full awareness of its prior choices. .. .

[T]he Commission’s detailed report assures us that

it has given full consideration to the change it made,

and explains its reasons for doing so.

United Video, 890 F.2d at 1181-82. The Court thus re-

jected claims that the FCC’s reinstatement of the syndex

rules was arbitrary and capricious. /d.

These cases demonstrate that proper application of the

arbitrary and capricious standard according to the prin-

ciples articulated by the Supreme Court in State Farm

requires that an agency reversing its course must provide

a reasoned analysis for the change that evinces an aware-

ness of the change and states the reasons for taking a

different course.

As a practical matter, the Court of Appeals’ decision

has broad implications far beyond the facts of this case,

and will impact the scope of judicial review of agency

action under a wide array of enabling statutes. The Court

of Appeals’ expansive use of the “reasonably discerned

path” language in the Supreme Court’s State Farm deci-

sion substantially lowers the standards for agency conduct

under the APA, and warrants review by the Supreme

Court.

CONCLUSION

For the foregoing reasons, the petition for writ of cer-

tiorari should be granted.

Respectfully submitted,