# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 2022 Decided March 3, 2023

No. 22

- 1004

I N RE : F LYERS R IGHTS E DUCATION F UND

, I NC

., DOING

BUSINESS AS F LYERS R IGHTS

. ORG AND P AUL H UDSON

, P ETITIONERS

On Petition f or 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 m andamus was Mark B. Stern , Attorney.

Before: W ALKER

, Circuit Judge , and R OGERS and T ATEL

, Senior Circuit Judges

.

Opinion for the Court filed by Circuit Judge W ALKER

.

W ALKER

, 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 h er 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 fo r 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 p etitioners must show “a clear and indisputable right to relief.” In re Cheney , 406 F.3d 723, 729 (D.C. Cir. 2005) (clean ed up)

. 2 Flyers Rights say s 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

commen t

, 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. O n 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 v iolated a crystal

clear legal duty,” a “ mandamus petitioner must show that it has no other adequate means to attain the relief it desire s .” 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

int ras tate 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 pr ovision’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. S econd, the regulations must

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

.

Th at 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 seat

size regulations are “necessary for the safety of passengers,” the FAA Reauthorization Act neither requires nor even

authorizes the FAA to “establish minimum dimensio ns for passenger seats on aircraft.” S ee 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 ’ ” s howing, 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 say s 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. T he FAA says it has found no compelling evidence of it so far

. Resp. Br. 6

- 7. A nd Flyers Rights has brought none to our attention

.

It’s not a s 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, t hat’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 Ow ners 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 ha s 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 size s 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 b lood 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; rat her 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 “ ‘c lear and indisputable ’ ” that airline

seats have become dangerously small

. In re Cheney , 406 F.3d

at 729 . Unless they are dangerously small, seat

- size regulation s are not “necessary for t he 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

comment s a nd is currently reviewing them

. In addition, Flyers Rights recently petitio ned 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 w e 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 n ecessity of those regulations is neither clear nor indisputable. 49 U.S.C. § 42301 note ; s ee 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.