Opposition Brief — Sun Country Airlines, Inc. v. Federal Aviation Administration

4 Supreme Court, Us,

4, See CE D

No. 95-361 ) NOV a 1995

In the Supreme Court of the Ginites-Stastes —__!

OCTOBER TERM, 1995

Sun CountTrRY AIRLINES, INC., PETITIONER

Vv.

FEDERAL AVIATION ADMINISTRATION

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UN?ITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

DREw S. DAYS, III

Solicitor General

FRANK W. HUNGER

aissistant Attorney General

WILLIAM KANTER

PETER R, MAIER

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether the Federal Aviation Administration ade-

quately justified its adoption of a rule requiring air

carriers to provide duty scheduling limitations and

rest requirements for flight attendants.

<r e ee ee.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467.U.S. 837 (1984) ...... 5

Citizens Awareness Network, Inc. v. NRC, 59

FE Me GOO CE. BGWIOD coccccsccsccensssaccccsescscccecenss 5

Mobil Oil Corp. v. Federal Power Comm’n,

a NM SED ica bo ks cence kcncebssasesvnasdovensrnees 6

Motor Vehicle Mfrs. Ass’n v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29 (1983) ..........cccc000- 4

Radio Ass’n on Defending Airwave Rights, Inc.

v. Department of Transportation, 47 F.3d 794

(6th Cir. 1995), cert. denied, 116 S. Ct. 59

ED iiddir UUM SAU Giada dudassacceewusserpenrunnakonsececesss 5

Rice v. Sioux City Memorial Park Cemetery,

i MEE dt OP RIND ici oid saccicckendaiiiccsnceesceess 6

United States v. Johnston, 268 U.S. 200

Ds ed icat pill datinicnceacinkuscabaieetvarionss 6

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

RRC 5

Statutes and regulations:

Administrative Procedure Act, 5 U.S.C. 701

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Federal Aviation Act of 1958, as recodified, 49

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49 U.S.C. 44701(a)(4) (1994) oo. eee 2

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IV

Regulations—Continued: Page |

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Miscellaneous:

50 Fed. Reg. (1985):

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In the Supreme Court of the Anited States

OCTOBER TERM, 1995

No. 95-361

SUN COUNTRY AIRLINES, INC., PETITIONER

v.

FEDERAL AVIATION ADMINISTRATION

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-3a)

is unreported, but the decision is noted at 56 F.3d 1531

(Table).

JURISDICTION

The judgment of the court of appeals was entered on

May 30, 1995. A petition for rehearing was filed on

July 14, 1995, and was denied on July 28, 1995. The

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

1254(1) and 49 U.S.C. 46110(e).

(1)

STATEMENT

The Federal Aviation Administration (FAA) has

adopted a rule requiring air carriers, air taxis, and

commercial operators to provide duty period schedul-

ing limitations and rest requirements for flight

attendants. Petitioner, a charter air carrier certified

by the FAA under Part 121 of the Federal Aviation

Regulations, 14 C.F.R. Pt. 121, requested the court of

appeals to invalidate that rule. Petitioner contended

that the FAA’s rule violated the Administrative Pro-

cedure Act (APA), 5 U.S.C. 701 et seq., because the

agency did not provide an adequate justification for

its action. The court of appeals rejected that argu-

ment and denied petitioner’s request for relief. Pet.

App. la-3a.

1. The Federal Aviation Act of 1958, as recodified,

49 U.S.C. 40101 et seg., empowers the FAA to pro-

mote civil air safety by prescribing regulations “for

the maximum hours or periods of service of airmen

and other employees of air carriers.” 49 U.S.C.

44701(a)(4) (1994) .. The FAA has issued regulations

under that authority establishing limitations on

flight duty and rest requirements for air carrier

flight crew members, including pilots, flight

engineers, and flight navigators. See 14 C.F.R.

121.471; 14 C.F.R. 121.481-121.493; 14 C.F.R. 121.500-

121.525.

In 1985, the FAA received petitions for rulemaking

from the Association of Flight Attendants and the

Joint Council of Flight Attendants Unions. They

urged the FAA to issue flight and duty time regula-

tions for flight attendants. See 50 Fed. Reg. 6185

(1985); 50 Fed. Reg. 25,252 (1985). On January 23,

1989, the FAA concluded that the proposed rule-

making was not in the public interest and denied the

petitions. See Pet. App. 7a. Four years later, the

FAA revisited that issue. On March 26, 1993, the

FAA issued a notice of proposed rulemaking suggest-

ing duty period scheduling limitations and rest

requirements for flight attendants engaged in air

transportation and air commerce. See 58 Fed. Reg.

17,024 (1993). The FAA received comments, and on

August 19, 1994, it issued a final rule establishing the

limitations and requirements at issue here. See 59

Fed. Reg. 42,974; see Pet. App. 4a-85a.

Subject to certain exceptions, the rule limits the

scheduled duty periods for flight attendants on domes-

tic flights to fourteen hours. A carrier may permit

flight attendants to exceed applicable limitations on

scheduled duty periods if it augments the number of

flight attendants on a flight above the number other-

wise required by regulation. Subject to certain ex-

ceptions, the rule also requires a minimum rest

period of nine hours after a duty period of fourteen

hours or less and a minimum rest period of twelve

hours after duty periods exceeding fourteen hours.

Alternatively, air carriers may satisfy the rule by

imposing on flight attendants the same duty limita-

tions and rest requirements that apply to other flight

crew members. See 14 C.F.R. 121.467; Pet. App. 74a-

77a.

2. On September 1, 1994, petitioner requested the

United States Court of Appeals for the District of

Columbia Circuit to review the FAA’s rule. See 49

U.S.C. 46110 (1994) (authorizing the court of appeals

to review FAA regulations). Petitioner contended

that the FAA had failed to provide an adequate justifi-

cation for the rule in light of the agency’s 1989 deci-

sion not to require duty limitations and rest periods

for flight attendants. The court of appeals denied the

petitioner’s request for relief. Pet. App. la-3a.

The court of appeals observed that this Court’s

decision in Motor Vehicle Mfrs. Ass’n v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29 (1983), requires an

agency “to supply a reasoned analysis” supporting a

change in the agency’s position. Pet. App. 2a. The

court concluded that the agency had done so here. It

noted that the FAA had explained in the rulemaking

that a 1989 study of flight attendant flight, duty, and

rest times in the air carrier industry (which was

completed after the agency terminated the earlier

rulemaking) had prompted the agency to rethink its

earlier decision. Jbid. The court of appeals concluded

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

stated rationale that it adopted a new position based

on new information.” /bid.

ARGUMENT

1. Petitioner is mistaken in contending (Pet. 13)

that the court of appeals’ decision “seriously under-

mines” the principles set out in this Court’s decision

in State Farm, supra. The court of appeals correctly

recognized that the FAA was obligated to provide a

“reasoned analysis” for its departure from its pre-

vious position. Pet. App. 2a. The court examined the

FAA’s explanation for the rule, which was set out in

the rulemaking record. It concluded the FAA was

entitled to renew its examination of the issue in light

of additional data (principally a 1989 study of flight

attendant duty times) that had become available after

the FAA had denied the previous rulemaking peti-

tions. Pet. App. 2a.

Petitioner contends (Pet. 15) that the 1989 study

could not provide “the necessary empirical foundation

for the 1994 rule” because an FAA official had testi-

fied before a congressional subcommittee in 1991 that

a new rule was not necessary. See Pet. App. 93a-132a

(reproducing committee testimony). That contention

is not well founded. An agency official’s testimony

before a congressional committee should not preclude

the agency from initiating new rulemaking to re-

examine a problem or the data relevant to its resolu-

tion. This case demonstrates why a rule of that sort

would be inappropriate. The official’s testimony did

not express an inalterable position. Jd. at 96a (stating

that the matter is not “a closed book”). Members of

the subcommittee strongly questioned the official’s

conclusions. See id. at 97a-1lla, 113a-116a, 118a-128a,

130a-132a. The agency was entitled to reconsider its

position, reevaluate the significance of the 1989 study,

and redetermine the need for action. See Chevron

U.S.A. Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 863-864 (1984) (an agency must

consider “the wisdom of its policy on a continuing

basis”).

2. Petitioner is incorrect in its contention (Pet.

17-20) that the court of appeals’ decision conflicts

with decisions from other circuits. The court of

appeals’ ruling that the FAA had adequately identi-

fied reasons for its departure from a prior agency

decision is consistent with the supposedly conflicting

cases that petitioner cites. See Citizens Awareness

Network, Inc. v. NRC, 59 F.3d 284, 291-292 (1st Cir.

1995); Radio Ass’n on Defending Airwave Rights,

Inc. v. Department of Transportation, 47 F.3d 794,

804-805 (6th Cir. 1995), cert. denied, 116 S. Ct. 59

(1995); United Video, Inc. v. FCC, 890 F.2d 1173, 1181-

1182 (D.C. Cir. 1989). In each of those cases, the

courts invoked the State Farm standard and required

the agency to provide a “reasoned analysis” for the

agency’s departure from a prior decision. The courts

evaluated the adequacy of the particular justifications

in each case. None of the cases suggests any con-

fusion or conflict as to the correct legal standard.

3. In reality, petitioner objects to the court’s

application of the familiar State Farm standard to the

facts of this case. This Court does not normally

grant review to determine whether an established

legal standard was correctly applied in a particular

instance. See, e.g., Mobil Oil Corp. v. Federal Power

Comm'n, 417 U.S. 283, 309-310 (1974). This case pre-

sents no reason for the Court to depart from that

practice. It presents only fact-specific questions that

do not merit further review. See, e.g., Rice v. Sioux

City Memorial Park Cemetery, Inc., 349 U.S. 70, 73-

74 (1955); United States v. Johnston, 268 U.S. 220, 227

(1925).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREW S. DAYS, IT

Solicitor General’

FRANK W. HUNGER.

Assistant Attorney General

WILLIAM KANTER

PETER R. MAIER

Attorneys

OCTOBER 1995