United States Court of Appeals, District of Columbia Circuit
Argued: October 10, 2014.
On Petition for Review from the Federal Aviation Administration.
Amanda C. Dure argued the cause for petitioner. With her on the briefs was Michael J. Pangia.
Jeffrey E. Sandberg, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief were Stuart F. Delery, Assistant Attorney General, Ronald C. Machen, Jr., U.S. Attorney at the time the brief was filed, and Mark B. Stern, Attorney.
Before: ROGERS, Circuit Judge, BROWN, Circuit Judge, and EDWARDS, Senior Circuit Judge.
Edwards, Senior Circuit Judge :
On October 31, 2013, the Federal Aviation Administration (" FAA" ) issued FAA Notice N8900.240, Expanded Use of Passenger Portable Electronic Devices (" Notice N8900.240" or " the Notice" ). The Notice is an internal guidance document issued to FAA aviation safety inspectors concerning the use and stowage of portable electronic devices (" PEDs" ) aboard commercial and other aircraft. On December 30, 2013, the Association of Flight Attendants (" AFA" ) filed a petition for review with this court challenging Notice N8900.240 on the ground that " the FAA impermissibly and substantially altered and effectively amended 14 C.F.R. § 121.589, the regulation that pertains to carry-on baggage on an aircraft," without adhering to the notice and comment requirements of the Administrative Procedure Act (" APA" ), 5 U.S.C. § 553. Petitioner's Br. 5.
The AFA seeks to invoke this court's jurisdiction under 49 U.S.C. § 46110(a), which provides that " a person disclosing a substantial interest in an order issued by" the FAA " may apply for review" in this
court " not later than 60 days after the order is issued." The FAA claims that this court lacks jurisdiction over the petition for review because the Notice does not constitute final agency action. See, e.g., Vill. of Bensenville v. FAA, 457 F.3d 52, 68, 372 U.S. App.D.C. 406 (D.C. Cir. 2006) (noting that jurisdiction under 49 U.S.C. § 46110(a) is limited to review of " final order[s]" ). We agree.
In order for an agency action to be viewed as " final agency action" it " must mark the 'consummation' of the agency's decisionmaking process," rather than being " tentative or interlocutory." Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (citation omitted). And it must determine " rights or obligations," or produce " legal consequences." Id. at 178 (internal quotation marks omitted). Notice N8900.240 does not satisfy these requirements. The Notice is nothing more than an internal guidance document that does not carry the " force and effect of law." Perez v. Mortgage Bankers Ass'n, 135 S.Ct. 1199, 1204, 191 L.Ed.2d 186 (2015). Therefore, the Notice does not reflect final agency action.
It does not matter that Notice N8900.240 may reflect a change in the FAA's interpretation of the regulation embodied in 14 C.F.R. § 121.589. In Perez, the Supreme Court explained that:
Not all " rules" must be issued through the notice-and-comment process. Section 4(b)(A) of the APA provides that, unless another statute states otherwise, the notice-and-comment requirement " does not apply" to " interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice." 5 U.S.C. § 553(b)(A). . . . [T]he critical feature of interpretive rules is that they are " issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers." The absence of a notice-and-comment obligation makes the process of issuing interpretive rules comparatively easier for agencies than issuing legislative rules. But that convenience comes at a price: Interpretive rules " do not have the force and effect of law and are not accorded that weight in the adjudicatory process."
Id. at 1203-04 (citations omitted). As Perez makes clear, the APA " permit[s] agencies to promulgate freely [interpretive] rules -- whether or not they are consistent with earlier interpretations" of the agency's regulations. Id. at 1207; s ee also Hudson v. FAA, 192 F.3d 1031, 1035-36, 338 U.S. App.D.C. 194 (D.C. Cir. 1999) (holding that an agency may change its policy statements as it sees fit without following APA notice and comment procedures). Such agency interpretations and policy statements do not " amend" the regulations to which they refer. As noted in Perez, " [o]ne would not normally say that a court 'amends' a statute when it interprets its text. So too can an agency 'interpret' a regulation without 'effectively amend[ing]' the underlying source of law." Id. at 1208 (alteration in original).
On the record before us, it is clear that Notice N8900.240 does not purport to amend any FAA regulation, and it does not otherwise carry the force of law. FAA regulations prohibit the use of most PEDs during flight unless an airline determines that they will not interfere with the aircraft's navigation or communications. 14 C.F.R. § 121.306. The FAA has long advised that PED use be allowed during the main portion of flights, but barred during takeoff and landing. Although the agency's recommendations are ...