United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 2022 Decided March 3, 2023

No. 22-1004

IN RE: FLYERS RIGHTS EDUCATION FUND, INC., DOING 

BUSINESS AS FLYERSRIGHTS.ORG AND PAUL HUDSON,

PETITIONERS

On Petition for Writ of Mandamus

Michael T. Kirkpatrick argued the cause for petitioners. 

With him on the petition for a writ of mandamus and the reply 

was Allison M. Zieve.

Martin Totaro, Attorney, U.S. Department of Justice, 

argued the cause for respondents. On the opposition to the 

petition for writ of mandamus was Mark B. Stern, Attorney.

Before: WALKER, Circuit Judge, and ROGERS and TATEL, 

Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge WALKER. 

WALKER, Circuit Judge: In 2006, American Airlines held

passengers on a plane for nine hours while the plane remained 

on the tarmac in Austin, Texas. One of those passengers was 

Kate Hanni. The next year, she founded a non-profit to lobby 

the government to further regulate how commercial airlines 

treat their customers. Hanni called her group Flyers Rights. 
2

In this case, Flyers Rights and its current president have 

taken aim at the small size of airline seats. In their view, small 

seats slow emergency evacuations and cause medical problems

like blood clots. They have petitioned for a writ of mandamus 

ordering the FAA “to commence rulemaking to establish 

minimum seat size and spacing requirements for commercial 

aircraft and to issue a final rule by a date certain.” Pet. Br. 23.

1

 

Mandamus petitioners must show “a clear and indisputable 

right to relief.” In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 

2005) (cleaned up).

2

 Flyers Rights says that the FAA 

Reauthorization Act of 2018 gives it that right. The Act

provides:

Not later than 1 year after the date of enactment of this Act, 

and after providing notice and an opportunity for 

comment, the Administrator of the Federal Aviation 

1 This is not Flyers Rights’ first rodeo — or their last. In 2015, it

petitioned the FAA to regulate airplane seat sizes. See Flyers Rights 

Education Fund, Inc. v. Federal Aviation Administration, 864 F.3d 

738, 741–42 (D.C. Cir. 2017). The FAA denied their petition. Id. at 

742. In 2017, this court upheld the FAA’s decision in part. Id. at 

741. On remand, the FAA denied their petition once more. See 

Letter from Federal Aviation Administration to Paul Hudson (July 2, 

2018), https://go.usa.gov/xzzAD (July 2018 Letter). Then in 2022, 

after filing this mandamus petition, they again petitioned the FAA to 

regulate airplane seat sizes. See FlyersRights.org, Petition for 

Rulemaking 1, 26 (Oct. 5, 2022), https://perma.cc/ZVV9-RTL7.

2 In addition to establishing “that the agency has violated a crystalclear legal duty,” a “mandamus petitioner must show that it has no 

other adequate means to attain the relief it desires.” In re: Center for 

Biological Diversity, 53 F.4th 665, 670 (D.C. Cir. 2022) (cleaned 

up). And even then “a court may grant mandamus relief only when 

it also finds compelling equitable grounds.” Id. (cleaned up).
3

Administration shall issue regulations that establish 

minimum dimensions for passenger seats on aircraft

operated by air carriers in interstate air transportation or 

intrastate air transportation, including minimums for seat 

pitch, width, and length, and that are necessary for the 

safety of passengers.

49 U.S.C. § 42301 note (emphases added).

Under that provision’s best interpretation — though 

perhaps not its only interpretation — the FAA must issue 

regulations if they satisfy those two bolded criteria. Id. First, 

the regulations must “establish minimum dimensions for 

passenger seats on aircraft.” Id. Second, the regulations must 

also be “necessary for the safety of passengers.” Id.

That interpretation follows from the provision’s use of the 

conjunctive “and.” The FAA must issue regulations that 

mandate minimum seat sizes “and that are necessary for the 

safety of passengers.” Id. (emphasis added). So unless seatsize regulations are “necessary for the safety of passengers,” 

the FAA Reauthorization Act neither requires nor even 

authorizes the FAA to “establish minimum dimensions for 

passenger seats on aircraft.” See Loving v. IRS, 742 F.3d 1013, 

1019 (D.C. Cir. 2014) (“the statute uses the conjunctive ‘and’

— not the disjunctive ‘or’ — when listing the various 

requirements, a strong indication that Congress did not intend 

the requirements as alternatives”); see also Oral Arg. Tr. 5

(Judge Tatel: “Suppose I asked you to buy me a car that is fast 

and red. Would you get me a car that’s just fast without regard 

to color?”); Antonin Scalia & Bryan A. Garner, Reading Law

116 (“And joins a conjunctive list”); cf. id. at 142 (grammar has 

a “preference for that in a restrictive clause and a comma plus 

which in a nonrestrictive clause”). 
4

The problem for Flyers Rights is that it has not made a

“‘clear and indisputable’” showing, In re Cheney, 406 F.3d at 

729, that any seat-size regulations “are necessary for the safety 

of passengers,” 49 U.S.C. § 42301 note.

3

Start with emergency evacuations. Flyers Rights says that

small seats materially slow the exit of passengers in an 

emergency. But that is not “‘clear and indisputable.’” In re 

Cheney, 406 F.3d at 729. The FAA says it has found no 

compelling evidence of it so far. Resp. Br. 6-7. And Flyers 

Rights has brought none to our attention. 

It’s not as if the FAA is refusing to look for that evidence. 

It has run emergency-exit tests, and it has reviewed nearly 300 

real-world exits. But each time, there is little to “no discernable 

difference in evacuation times due to seat dimensions.” Resp. 

Br. Exhibit B 44. According to the FAA, that’s in part because

“the time it takes to stand up from one’s seat . . . is less than the 

time it will take to get the emergency exits opened and 

functional and for the line that begins forming in the aisle to 

clear.” Letter from FAA to Paul Hudson at 2 (July 2, 2018), 

https://go.usa.gov/xzzAD.4

 

3 The word “necessary” often means “absolutely needed: 

REQUIRED.” Necessary (def. 1), Merriam-Webster (2023); see 

also Vorchheimer v. Philadelphia Owners Association, 903 F.3d 

100, 105 (3d Cir. 2018) (“necessary” often means 

“required, indispensable, essential” (cleaned up)). But here, even if 

“necessary” merely means something like “sufficiently important,” 

Flyers Rights would still need to show what it has not — at least 

some material connection between seat-size regulations and 

passenger safety. 

4 That finding will surprise no one who has waited for the center aisle 

to clear while standing in the back of an airplane.
5

As for seat sizes and blood clots, Flyers Rights has again 

shown no “‘clear and indisputable’” connection. In re Cheney, 

406 F.3d at 729. Evidence before the FAA in 2017 suggested 

that blood clots on flights are rare and are “not caused by seat 

size or spacing.” Flyers Rights Education Fund Inc. v. FAA, 

864 F.3d 738, 749 (D.C. Cir. 2017). And although small seats 

can certainly cause soreness and stiffness, those conditions are 

not safety hazards; rather they are “commonplace, temporary, 

and non-life-threatening discomforts.” Id.

To be sure, many airline seats are uncomfortably small. 

That is why some passengers pay for wider seats and extra 

legroom. But it is not “‘clear and indisputable’” that airline 

seats have become dangerously small. In re Cheney, 406 F.3d

at 729. Unless they are dangerously small, seat-size 

regulations are not “necessary for the safety of passengers.” 49 

U.S.C. § 42301 note. And until they are “necessary,” the FAA 

cannot comply with Congress’s order to promulgate seat-size 

regulations “necessary for the safety of passengers.” Id.

To be clear about the limits of our holding, evidence might

one day show that seat-size regulations are “necessary for the 

safety of passengers.” Id. The FAA has requested public 

comments and is currently reviewing them. In addition, Flyers 

Rights recently petitioned the FAA to promulgate seat-size 

regulations, and in that proceeding, new evidence might arise. 

See FlyersRights.org, Petition for Rulemaking 1, 26 (Oct. 5, 

2022), https://perma.cc/ZVV9-RTL7.

5

 

5 Even if seat-size regulations are not yet necessary, perhaps airlines 

will make seat sizes so small in the future that they slow emergency 

evacuations or otherwise endanger passengers. If so, regulations 

could then be “necessary.” 49 U.S.C. § 42301 note.
6

Today we merely hold that Flyers Rights lacks a “clear and 

indisputable right to relief.” In re Cheney, 406 F.3d at 729

(cleaned up). That’s because the FAA Reauthorization Act 

speaks only of seat-size regulations that “are necessary for the 

safety of passengers,” and on the record before us, the necessity 

of those regulations is neither clear nor indisputable. 49 U.S.C. 

§ 42301 note; see also In re National Nurses United, 47 F.4th 

746, 752-54 (D.C. Cir. 2022) (mandamus is not appropriate 

unless the agency has violated a clear legal duty).

* * *

The petition is therefore denied. 

So ordered.