From Westlaw Journal Aviation: A District of Columbia federal appeals court has ruled it cannot review a new Federal Aviation Administration policy allowing passengers to use certain portable electronic devices, such as iPads, during takeoff and landing because the policy is not a final agency action.
The District of Columbia U.S. Circuit Court of Appeals lacks jurisdiction to review notice N8900.240 because the policy only offers nonbinding guidelines to airlines and does not conflict with any existing regulations, Senior U.S. Circuit Judge Harry T. Edwards wrote for the three-judge panel May 8.
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Using iPads during takeoff could cause injuries, suit said.
“The notice is nothing more than an internal guidance document that does not carry the ‘force and effect of law,’” the judge said, quoting the U.S. Supreme Court’s recent decision in Perez v. Mortgage Bankers Association, 135 S. Ct. 1199 (2015).
(Click here for the District of Columbia Circuit opinion on WestlawNext.)
The Association of Flight Attendants petitioned the appeals court in May 2014 to review notice N8900.240, alleging it violates the Administrative Procedure Act and could potentially lead to injuries to airline passengers and crew members (see Westlaw Journal Aviation, Vol. 32, Iss. 7, 32 No. 7 WJAVIA 6).
A passenger could lose control of even a light object during turbulence or an emergency landing, and travelers may not hear flight attendants’ safety information if they are allowed to use such items as noise-canceling headsets during takeoff and landing, the petition said.
The flight attendants union asked the District of Columbia Circuit to order the FAA to follow APA guidelines, which require giving proper notice to and requesting comment from the public before enacting a rule.
The FAA responded that the policy is not subject to court review because it is not a final agency order as stipulated in 49 U.S.C. § 46110(a), nor is it a “legislative rule” requiring a notice-and-comment period under APA guidelines. Catawba Cnty. v. EPA, 571 F.3d 20 (D.C. Cir. 2009).
Rather than ignore plane cabin safety, as the union implies, notice N8900.240 encourages airlines to consider safety factors when determining their individual polices for in-flight use and storage of portable electronic devices, the FAA’s brief said (see Westlaw Journal Aviation, Vol. 32, Iss. 14, 32 No. 14 WJAVIA 3).
The District of Columbia Circuit agreed.
The policy does not have two key qualities necessary to be classified as a final agency action available for the appeals court’s review: It does not mark the “consummation” of the FAA’s decision-making process nor does it determine any “rights or obligations” or produce “legal consequences,” Judge Edwards said, citing Bennett v. Spear, 520 U.S. 154 (1997).
“The [n]otice instructs aviation safety inspectors on what to look for when evaluating revised carry-on baggage programs, but it does not limit their discretion,” Judge Edwards said, noting that airlines may ignore notice N8900.240.
The FAA clearly stated the policy is not a legislative rule but is merely a nonbinding document offering guidance to safety inspectors similar to the agency’s previous advice, the appeals court opinion said.
Nothing in the policy contradicts that statement, Judge Edwards said.
