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

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     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)

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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)

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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)

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 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-

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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

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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

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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

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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