Association of Flight Attendants-CWA, AFL-CIO v. Michael P. Huerta
Argued October 10, 2014, Decided May 8, 2015 (2015)
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Rule of Law:
An internal agency guidance document that does not create binding rights or obligations, produce legal consequences, or carry the force of law is not considered a 'final agency action' and is therefore not subject to judicial review.
Facts:
- FAA regulations required airlines to have an agency-approved carry-on baggage program and to stow all baggage before takeoff and landing, but the regulations did not define 'carry-on baggage'.
- For many years, non-binding FAA guidance recommended that airlines prohibit the use of most Portable Electronic Devices (PEDs) during takeoff and landing.
- In 2012, the FAA began reevaluating its PED policy, seeking public comment and forming an Aviation Rulemaking Committee that included representatives from the Association of Flight Attendants (AFA).
- On September 30, 2013, the Committee issued a report recommending a new method for airlines to assess the safety of expanded PED use, distinguishing between 'stowing' large devices and merely 'securing' smaller ones (e.g., in hand or a pocket).
- The AFA representative on the committee dissented from the recommended method.
- On October 31, 2013, the FAA issued Notice N8900.240, an internal guidance document addressed to its aviation safety inspectors.
- The Notice explained the new, more permissive PED policy and advised inspectors on how to evaluate airlines' revised carry-on baggage programs, which might now allow small PEDs to be 'secured' rather than 'stowed' during takeoff and landing.
Procedural Posture:
- The Association of Flight Attendants (AFA) filed a petition for review directly in the U.S. Court of Appeals for the D.C. Circuit to challenge the Federal Aviation Administration's (FAA) Notice N8900.240.
- AFA argued that the Notice was an improper amendment to an existing regulation that was issued without adhering to the Administrative Procedure Act's notice-and-comment requirements.
- The FAA contested the court's jurisdiction, arguing that the petition for review should be dismissed because the Notice did not constitute a 'final agency action'.
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Issue:
Does an internal Federal Aviation Administration (FAA) guidance notice, which advises safety inspectors on new policies for portable electronic devices (PEDs) but does not create binding legal rights or obligations for airlines, constitute a 'final agency action' subject to judicial review under 49 U.S.C. § 46110(a)?
Opinions:
Majority - Edwards, Senior Circuit Judge
No, an internal FAA guidance notice that does not create binding legal rights or obligations is not a 'final agency action' subject to judicial review. For an agency action to be final, it must mark the consummation of the agency's decision-making process and determine rights or obligations or produce legal consequences. This Notice is an interpretive rule or a statement of policy, not a legislative rule with the force and effect of law. It does not compel airlines to alter their policies, nor does it eliminate the discretion of safety inspectors, using precatory language like 'should' and 'may' rather than mandatory language. Furthermore, the Notice does not unlawfully amend the existing baggage regulation (14 C.F.R. § 121.589) because that regulation never defined 'carry-on baggage,' leaving airlines free to exclude small PEDs from that definition. As the Notice is not a final agency action, the court lacks jurisdiction to review it.
Analysis:
This decision reinforces the high jurisdictional threshold for challenging agency actions, particularly informal guidance documents. By strictly applying the finality doctrine, the court preserves an agency's flexibility to issue non-binding interpretive rules and policy statements without triggering the burdensome notice-and-comment process or immediate judicial review. The ruling clarifies that a change in an agency's interpretation of its own regulations is not, by itself, a reviewable final action, making it more difficult for regulated parties to challenge policy shifts that are not codified in formal, legislative rules. This solidifies the distinction between binding legislative rules, which have the force of law, and non-binding guidance, which does not.
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