United States: D.C. Circuit Bounces Challenge To DOT Rule: Too Late In The Wrong Court

Paul Kiernan is a Partner in Holland & Knight's Washington D.C. office

A "direct-review statute" vests in the court of appeals the exclusive jurisdiction to review orders of certain agencies in certain circumstances. Among such statutes are one affecting orders of the Department of Transportation or the Federal Aviation Administration (49 U.S.C. §46110); and one addressing orders of the Securities and Exchange Commission under the Investment Advisers Act (15 U.S.C. § 80b-13(a)).

But when is an agency rule an "order" for purposes of jurisdiction under a direct-review statute? A recent challenger to a final DOT rule found out the hard way. And even a district court's efforts to help the challenger could not save the case.

The National Federation of the Blind challenged a final rule issued by DOT regarding ticketing kiosks at airports. In an APA case brought in the district court, NFB argued that the agency acted contrary to law in not requiring that all kiosks be made accessible. See National Federation of the Blind v. U.S. Dep't of Transportation, 78 F.Supp. 3d 407, 409 (D.D.C. 2015). DOT moved to dismiss the challenge on the grounds that 49 U.S.C. §46110(a) vests exclusive jurisdiction in the courts of appeals over a petition for review filed by a person "disclosing a substantial interest in an order issued by the Secretary of Transportation." That's true, held the district court, and under circuit precedent, this final rule is an "order" within the meaning of the statute. But, the court continued, the challenge arguably could have been viewed as a proper APA challenge: Because the direct-review statute does not define the term "order," if the court imported the definition of "order" from the APA, that definition does not encompass rulemaking. Id. at 412. So, given this state of the law and given the interests of justice, the district court exercised its power under 28 U.S.C. § 1631 to transfer the case to the D.C. Circuit as a petition for review. Id. at 415-16. NFB also filed an appeal from the district court's order declining jurisdiction—an appeal that the circuit court treated as a request for a writ of mandamus.

In a decision issued on June 28, 2016, the D.C. Circuit affirmed the lower court's ruling that the lower court was without jurisdiction to review the DOT rule. Under its precedents, a direct-review statute's definition of "order" encompasses final rulemaking such as here. "Order" under such statutes is not limited to the APA definition of "order." (Slip op. at 7). And since the district court was correct about its lack of jurisdiction, mandamus was not available.

But what about the transfer of the petition for review by the district court? Not effective, held the court, because NFB filed too late. The direct-review statute states that a petition for review must be filed "not later than 60 days after the order is issued." NFB filed its district court case 71 days after the issuance of the DOT rule (which was within the time for an APA challenge). And while the circuit court can allow a late filing if there are "reasonable grounds for not filing by the 60th day," 49 U.S.C. § 46110(a), there were no such reasonable grounds here. A delay by filing in the wrong court is not a reasonable ground, nor is uncertainty about where to file. As to what NFB should have done: "If any doubt as to the proper forum exists, careful counsel should file suit in both the court of appeals and the district court or...bring suit only in the court of appeals." (Slip op. at 14-15, quoting Investment Company Inst. v. Board of Governors of the Federal Reserve Sys., 551 F.2d 1270, 1280 (D.C. Cir. 1977).)


  1. Make sure there is (or isn't) a direct-review statute.
  2. Follow it—to the letter.
  3. When in doubt, file in circuit court quickly and argue later.

You can have the best regulatory challenge in the world but it does you no good if you can't get a judge.

National Federation of the Blind v. U.S. Dep't of Transportation, Case No. 15-1026 (D.C. Cir.)

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