No. 95-361 In The Supreme Court of the United States OCTOBER TERM, 1995 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 DREW S. DAYS, III Solicitor General FRANK W. HUNGER Assistant Attorney General WILLIAM KANTER PETER R. MAIER Attorneys Department of Justice Washington, D.C. 20530 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- 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. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Opinions below . . . . 1 Jurisdiction . . . . 1 Statement . . . . 2 Argument . . . . 4 Conclusion . . . . 6 TABLE OF AUTHORITIES Cases: Page Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467. U.S. 837 (1984) . . . . 5 Citizens Awareness Network, Inc. v. NRC, 59 F.3d 284 (1st Cir. 1995) . . . . 5 Mobil Oil Corp. v. Federal Power Comm'n, 417 U.S. 283 (1974) . . . . 6 Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29(1983) . . . . 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 ( 1995) . . . . 5 Rice v. Sioux City Memorial Park Cemetery, Inc., 349 Us. 70 (1955) . . . . 6 United States v. Johnston, 268 U.S. 200 (1925) . . . . 6 United Video, Inc. v. FCC, 890 F.2d 1173 (D.C. Cir. 1989) . . . . 5 Statutes and regulations: Administrative Procedure Act, 5 U.S.C. 701 et seq. . . . 2 Federal Aviation Act of 1958, as remodified, 49 U.S.C. 40101 et seq. . . . 2 49 U.S.C. 44701(a)(4) (1994) . . . . 2 49 U.S.C. 46110 (1994) . . . . 3 (III) ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United 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. 1a-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 filled 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) ---------------------------------------- Page Break ---------------------------------------- 2 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. 1a-3a. 1. The Federal Aviation Act of 1958, as remodified, 49 U.S.C. 40101 et seq., 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- ---------------------------------------- Page Break ---------------------------------------- 3 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 ---------------------------------------- Page Break ---------------------------------------- 4 for flight attendants. The court of appeals denied the petitioner's request for relief. Pet. App. 1a-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 (19%3), 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. Ibid. 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 in formation." Ibid. 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 ---------------------------------------- Page Break ---------------------------------------- 5 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 unalterable position. Id. 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-111a, 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 ---------------------------------------- Page Break ---------------------------------------- 6 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 Stole 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, III Solicitor General FRANK W. HUNGER Assistant Attorney General WILLLAM KANTER PETER R. MAIER Attorneys October 1995