Association Of Flight Attendants-Cwa, Afl-Cio v. Huert

785 F.3d 710 (D.C. Cir. 2015)

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Nature of the Case

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Facts

The FAA (D) requires airlines to have an agency-approved carry-on baggage program to control the size and amount of luggage that passengers can bring aboard their planes. Airlines are to describe what they include in the term 'Carry-On Baggage. FAA regulations nominally ban the operation of most PEDs during flight, save for portable voice recorders, hearing aids, pacemakers, and electric shavers. This regulation allows for the use of any device that the airline determines 'will not cause interference with the navigation or communication system of the aircraft.' Prior to 2012, D recommended that airlines allow passengers to use devices during the main portion of a flight, but prohibit use during takeoff and landing. D published a notice seeking public comment on its guidance to airlines regarding how to determine whether and when electronic devices are safe for in-flight use. More than a thousand comments were submitted. An Aviation Rulemaking Committee was constituted to review the comments and recommend changes to D's policies. The AFA (P) was part of that committee. The Committee designed a method for airlines to use in assessing whether passengers can safely keep their devices on during takeoff and landing. P dissented from the method recommended advocating instead for a more conservative approach. D produced a set of guidance documents. The second guidance document, Notice N8900.240, is addressed to the D's aviation safety inspectors. The Notice explains the new guidance to airlines and states that the agency does not need to approve an airline's finding that expanded PED use will not interfere with flight safety. The Notice observes that expanding PED use may necessitate revisions to an airline's policies and documentation, including carry-on baggage programs. The Notice lists some 'general concerns' that a modified carry-on baggage program 'should address.' The Notice also gives guidance to aviation safety inspectors to assist them in addressing issues that airlines may face in connection with expanded passenger use of PEDs. It does not compel the airlines to do anything. P filed a petition for review of the Notice in this court. P asks that the Notice be set aside. P contends that allowing small PEDs to remain secured (rather than stowed) during takeoff and landing is arbitrary, capricious, contrary to existing regulations, and was improperly promulgated without notice and comment. D moved to dismiss P’s petition.