[00:00:02] Speaker 00:
Case number 17-1272 at L. Paralyzed Ventures of America at L.

[00:00:38] Speaker 04:
Good morning.

[00:00:39] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:42] Speaker 01:
Your Honors, before this case, before this Court today is a rare and unprecedented case.

[00:00:47] Speaker 01:
Here, the Department has cited three statutes in its rule.

[00:00:50] Speaker 01:
Now, one of those statutes, 329, absolutely authorizes the rule and takes the case within the District Court's jurisdiction.

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The other two, however, although Part A had absolutely nothing to do with the rule, as has been made clear by the Department in its public rulemaking where it calls citations of these Part A statutes an error.

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Accordingly, there is simply nothing in the delay rule that triggered 46110 jurisdiction in this Court.

[00:01:14] Speaker 01:
But even if Your Honors disagree with me on that point.

[00:01:17] Speaker 01:
PVA's position that this belonged in district court, and thus that there was no 60-day time limit, is eminently reasonable in light of the agency's error.

[00:01:26] Speaker 01:
The agency cited the wrong statutes, and in so doing created immense amount of confusion, and in this rare case, that confusion should allow this court to grant reasonable grounds for the lay file to... In the American Petroleum Institute case, right, we had a circumstance where we looked at

[00:01:47] Speaker 04:
We looked beyond the regulation itself, the citation of authority and the regulation itself.

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We looked at the course of conduct of the agency and we said, you know, look, everyone knows that they're actually, I think it was 15D, that they're actually acting pursuant to 15D.

[00:02:05] Speaker 04:
Let's let common sense prevail here.

[00:02:07] Speaker 04:
That's what they were acting under.

[00:02:10] Speaker 04:
In that case, that didn't allow for direct review.

[00:02:14] Speaker 04:
Isn't that what the district court has done here?

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Isn't the district court saying, look, everyone knows the Department of Transportation made a mistake here.

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They clearly had authority.

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Had they cited 41708 or 41709, I think you agree, then we're in direct review land.

[00:02:33] Speaker 04:
They had authority to do that.

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They messed up.

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But everyone recognized that.

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Let's treat it for what it is and act accordingly.

[00:02:45] Speaker 04:
Isn't that within what API, the American Petroleum Institute case, is teaching us how we ought to approach this?

[00:02:53] Speaker 01:
Your Honor, I don't think so.

[00:02:54] Speaker 01:
First of all, in the API, this court didn't look beyond what was at least referenced in the rule to sort of search out other statutes that might possibly have applied.

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The regulation cited Section 15.

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Only certain subparts of Section 15 came within the direct review provision, and so the court looked behind Section 15 to figure out what part of it

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actually applied, but it's not as though this court went searching for an entirely different statute that supported the rule.

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And Your Honor, it's a principle of administrative law that agencies cannot provide post hoc rationalizations.

[00:03:23] Speaker 01:
That's exactly what the agency's trying to do here.

[00:03:26] Speaker 03:
Hang on a minute.

[00:03:27] Speaker 03:
There's another line of authority, Supreme Court cases, cases from this circuit, cases from every circuit, that says when a plaintiff files a complaint,

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The federal rules require one section of the complaint to state the jurisdictional basis for the complaint.

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And time after time,

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plaintiffs messed that up.

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They said in 1983 cases, instead of citing the jurisdictional prerequisite, which is 1343.3, they cite 1983, which is not a jurisdiction.

[00:04:04] Speaker 03:
The Supreme Court over and over again in our court says it doesn't matter, that if we know, if we see general federal question jurisdiction or diversity jurisdiction, they haven't named it, the case can go forward.

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And that makes perfect sense for the reasons that Judge Griffith just mentioned, but also because this is a jurisdictional question and the court is supposed to be acting su espante with respect to a jurisdictional question.

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So why isn't that line of cases under 8A1 of the Federal Rules of Civil Procedure, which dates back to the last century, a perfect analogy here?

[00:04:42] Speaker 01:
Your Honor, when jurisdiction, even in cases not like this one, when jurisdiction is based on certain facts existing in the world, courts do require plaintiffs to plead those facts.

[00:04:51] Speaker 01:
Imagine, for example, if a plaintiff were to file a case in federal court

[00:04:55] Speaker 01:
attempting to invoke the court's diversity jurisdiction, and they didn't sue the right party that has complete diversity.

[00:05:01] Speaker 01:
Even if everyone agrees that there's a party out there that would be completely diverse and that they could bring the cause of action against, it's not as though the court says, well, we know you could have sued the right party, so we'll just let the case go forward.

[00:05:12] Speaker 03:
Instead, the court requires the plaintiff to either amend or... Well, that reminds me of another doctrine that goes back to the 1800s.

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And there's a case called Stroblis versus Curtis.

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This was a diversity case.

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And that case has stood for the proposition that jurisdiction can't be waived, right?

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So in other words, but under your submission, if an agency says to itself, we don't want this case in the Court of Appeals, let's just, let's shove it into the district court.

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And they come up with a, you know, a very remote statute in the rulemaking and the federal register.

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that avoids the direct review in the Court of Appeals.

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So what they've done is waived direct review.

[00:05:54] Speaker 03:
You can't do that.

[00:05:57] Speaker 01:
Yes, Your Honor, but I think that what's important to note from this court's line of cases is that this court has never allowed an agency to point to extraneous authority.

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It's taken the agency at its word.

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And to the extent that a case or a regulation could cite, for example, 329 that would bring the case within the district court's jurisdiction or 41708, which would bring it in within the court of appeals jurisdiction, that's a fraction that's made by Congress.

[00:06:24] Speaker 01:
But still, over and over again, courts look only to what the department cites in its rule to determine whether jurisdiction was triggered.

[00:06:32] Speaker 03:
Well, you want it in the district court, right?

[00:06:35] Speaker 01:
Your Honor, yes.

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And the reason you want it in the district court is otherwise you're out of time, because in the Court of Appeals you had to file your petition within 60 days.

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So that's the problem you have, and that's why you want it in the district court, right?

[00:06:50] Speaker 01:
Your honor, PVU's position all along has been that this belonged in the district court because if you look at the face of the delay rule, there is simply nothing that triggers 46110 jurisdiction.

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47108 and 47109 were not cited, and this court cannot look to those as a result.

[00:07:05] Speaker 04:
Do you agree that an agency, in this case the Department of Transportation, could have

[00:07:13] Speaker 04:
simply by the way they cited authority in the extension rule have chosen the form in which a challenge would be brought?

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I mean, in other words, if they had relied exclusively on 329, then that would require jurisdiction in one place.

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If they had done it in 41708, it would have allowed for

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direct review, because they're overlapping authorities here, right?

[00:07:48] Speaker 04:
There are various provisions that could have been used, some in part A, some not in part A. Has Congress given an agency that sort of authority that they can decide simply by which regulation they're going to invoke, whether there's direct review or not?

[00:08:06] Speaker 01:
Yeah, I don't know that Congress is specifically spoken to that, but certainly that's the result.

[00:08:10] Speaker 01:
That's I think the result.

[00:08:11] Speaker 01:
Yes.

[00:08:12] Speaker 04:
Doesn't seem odd.

[00:08:13] Speaker 04:
Doesn't seem odd.

[00:08:14] Speaker 01:
I don't think so, Your Honor.

[00:08:15] Speaker 01:
Plaintiffs are always given the choice whether they sue in state court or federal court when they have a state law claim.

[00:08:21] Speaker 01:
I mean, it is not uncommon in the federal court system that parties are given some amount of choice so long as they

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cite to the court or cite to the public the facts that would invoke a particular jurisdictional statute.

[00:08:32] Speaker 03:
There's another principle at stake here, too.

[00:08:36] Speaker 03:
When you seek judicial review of the regulation, you're seeking it under Section 706 of the APA, correct?

[00:08:44] Speaker 03:
Yes, Your Honor.

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The last sentence of 706 of the APA encapsulates the harmless error rule.

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And so why isn't it a harmless error if the agency neglects to put in the correct citation to a jurisdictional statute?

[00:09:04] Speaker 03:
And why doesn't 706 excuse that failure?

[00:09:10] Speaker 01:
Your honor, I think to the extent that there's an error here, that error should be borne by the federal government.

[00:09:15] Speaker 01:
We think that it's right for this court to expect that federal agencies act with due care when putting out regulations and choosing the statutory authority that they are asking.

[00:09:23] Speaker 03:
But it is harmless, isn't it?

[00:09:25] Speaker 01:
I don't think it's harmless, your honor.

[00:09:26] Speaker 03:
It's not harmless because PVA was under the... The consequences, we send it back to the agency or the district court sends it back to the agency and they...

[00:09:36] Speaker 03:
put in 4170, whatever it is, and then it comes back.

[00:09:42] Speaker 03:
But it's the same rule, and it's the same preamble, and it's the same rule-making.

[00:09:48] Speaker 03:
So why isn't that harmless error?

[00:09:49] Speaker 03:
I think it's a classic case of harmless error, isn't it?

[00:09:52] Speaker 01:
Your Honor, I think to the extent you're thinking about harmless error and the fact that this could go back to the agency for some sort of correction, that would be only if we raised a merits argument that this wasn't authorized, which we have not done.

[00:10:02] Speaker 01:
This is about where the case belongs and whether a 60-day time limit was applicable or not.

[00:10:07] Speaker 01:
And I do think that in a case where there is an error, that error should be borne by the federal government, not the general public.

[00:10:13] Speaker 02:
The general public... Suppose they cited nothing.

[00:10:16] Speaker 02:
I'm sorry?

[00:10:16] Speaker 02:
Suppose they cited no statute.

[00:10:17] Speaker 01:
If they cited no statute, Your Honor, then I think that this court's default rule that cases go first to the district court would apply.

[00:10:24] Speaker 01:
This court has been very clear that is the default rule.

[00:10:27] Speaker 01:
It's only overcome when there's a showing that a special review provision applies.

[00:10:31] Speaker 01:
If there's nothing cited to indicate that a special review provision applies, then I think it would go to the district court.

[00:10:36] Speaker 02:
Well, what is there to indicate that belongs in this court is the nature of the dispute, which is obvious.

[00:10:45] Speaker 02:
It's hard to miss.

[00:10:46] Speaker 01:
Well, Section 329 is there, and Section 329 on its face authorizes what this rule did.

[00:10:50] Speaker 01:
41701 and 41101, as the government has made clear, were cited in error, and they simply don't apply.

[00:10:57] Speaker 01:
Your Honor, I see that I'm out of time, and unless Your Honors have further questions, I will sit down.

[00:11:02] Speaker 04:
We'll give you back a couple minutes.

[00:11:03] Speaker 01:
Thank you very much.

[00:11:05] Speaker 04:
Thank you.

[00:11:19] Speaker 00:
The district court here got it right in transferring the case.

[00:11:28] Speaker 00:
Jurisdiction is proper here because as the court has noted, this is clearly the type of dispute, the type of case that Congress, in enacting 46-110,

[00:11:38] Speaker 00:
was directing to this court's jurisdiction.

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And National Federation of the Blind tells us that if there was any confusion or uncertainty about where to file, that this court's precedents direct that to protect their rights, the parties should have filed here within 60 days.

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They could proceed concurrently filing in both courts if they wish to do so.

[00:12:01] Speaker 00:
And their district court papers make clear that this wasn't a case in which there was real confusion about the relevance of Part A. And that's in two respects.

[00:12:14] Speaker 00:
First, their district court papers acknowledge that they were aware that the agency was purporting to proceed under Part A. That's a J61.

[00:12:26] Speaker 04:
But when the regulation is issued,

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and the Department of Transportation cites the authorities that it does.

[00:12:35] Speaker 04:
What's the public supposed to think?

[00:12:38] Speaker 04:
You've cited various authorities and from those authorities it looks like it's supposed to go to the district court.

[00:12:47] Speaker 00:
I don't think that's right, Your Honor.

[00:12:50] Speaker 00:
46 110 says that if the agency's order here rule is in whole or in part, even just in part under part A, they need to come here.

[00:13:02] Speaker 00:
So even if we just look on the face of what was promulgated,

[00:13:06] Speaker 00:
Two of the provisions.

[00:13:08] Speaker 04:
Which ones?

[00:13:08] Speaker 00:
41101 and 41701 came from Part A. And I want to direct the court's attention to 41701.

[00:13:17] Speaker 04:
It came from Part A, but they don't have anything to do with this.

[00:13:20] Speaker 00:
Well, I'm not sure that that's right, Your Honor.

[00:13:23] Speaker 04:
I just want to step back.

[00:13:25] Speaker 04:
41101 is a requirement for a certificate before operating an aircraft.

[00:13:28] Speaker 00:
What does that have to do with nature?

[00:13:30] Speaker 00:
I think 41701 is where I would direct the court's attention.

[00:13:33] Speaker 04:
Classification of air carriers.

[00:13:34] Speaker 00:
That's right.

[00:13:35] Speaker 00:
So 41701 is the very first provision of chapter, within chapter 417.

[00:13:43] Speaker 00:
And it's the first provision of a subsection that includes sections 41708 and 41709.

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And it's a much more general provision.

[00:13:51] Speaker 00:
And that provision authorizes the agency to impose requirements on various classes of air carriers.

[00:14:00] Speaker 00:
This rule imposes requirements on classes of air carriers.

[00:14:05] Speaker 00:
It requires air carriers who meet certain requirements to engage in tracking of various pieces of information.

[00:14:13] Speaker 00:
Historically, as we note in our brief, 41701, just as a matter of background,

[00:14:20] Speaker 00:
basically said, this is a provision that authorizes DOT to promulgate any rules and regulations necessary to implement other provisions of this sub-chapter.

[00:14:31] Speaker 00:
And that includes 41708 and 41709.

[00:14:33] Speaker 04:
But in the district court, what did you say about 41709?

[00:14:38] Speaker 00:
We certainly think that, as we have said in a rulemaking, that it was quoted in error, that there's better authority, that 41708 and 41709 are the undisputed pertinent sources here.

[00:14:50] Speaker 04:
What did you say about 701 before the district court?

[00:14:53] Speaker 00:
Very little.

[00:14:54] Speaker 00:
We didn't make an argument about it.

[00:14:56] Speaker 00:
Well, but here, we're here as the cases.

[00:14:58] Speaker 04:
Did you maybe forfeit that argument?

[00:15:00] Speaker 00:
I don't think so, Your Honor, because the case has been transferred, so I'm not sure that we would be bound by arguments made or not made there.

[00:15:06] Speaker 00:
But my point was only in using it in response to your question to explain why I think that somebody looking at the face of the rule

[00:15:13] Speaker 00:
would still be expected.

[00:15:14] Speaker 00:
If you're looking, here let's just step back and appreciate what the petitioners were looking at, as the rest of the public would have been.

[00:15:21] Speaker 00:
You're looking at a rule where there's been a long history that this regulation has always cited to Part A provisions, namely 41708 and 41709.

[00:15:29] Speaker 00:
A change occurs, but still Part A provisions are being cited.

[00:15:34] Speaker 00:
Petitioners district court papers make clear that they understood, they cited in their complaint in district court at the outset of the litigation that 41708 and 41709 provided the relevant statutory authority for the regulation that's at issue here and for amendments to that regulation, which is what is directly at issue here.

[00:15:58] Speaker 00:
And they also acknowledged that based on what was written in the rule, including the citation to 1.27N, they understood that the agency was purporting to act under Part A. So this is not a case where there was

[00:16:15] Speaker 00:
confusion, which is why their briefs did not argue that the lack of timeliness was the result of having been misled.

[00:16:24] Speaker 00:
Moreover, that kind of argumentation would be foreclosed by this court's precedence by decisions like National Federation of the Blind.

[00:16:33] Speaker 00:
And here, this really is a situation where the district court was right, it's out of time, and the argument that they've made about timeliness is limited to this notion that the efforts that they were engaged in in asking Congress

[00:16:49] Speaker 00:
to change the situation by emailing and calling the agency that that's sufficient.

[00:16:54] Speaker 04:
The government hasn't defended the extension rule, right?

[00:16:58] Speaker 04:
I mean, there's serious problems with the rule.

[00:17:00] Speaker 04:
There's no notice and comment, and you all haven't even defended that.

[00:17:04] Speaker 00:
So the extension rule goes to January 2019.

[00:17:08] Speaker 00:
The rule will take effect then.

[00:17:10] Speaker 00:
We have not put forward a merits argument, because we recognize that the record here doesn't allow us to determine whether or not exceptions to notice and comment, and to make an argument about whether the exceptions to notice and comment are appropriate.

[00:17:27] Speaker 00:
And so that's what we ask for remand.

[00:17:28] Speaker 04:
I thought you conceded that if it went back to the district court, summary judgment should be entered for the plaintiffs.

[00:17:33] Speaker 04:
Is that not right?

[00:17:33] Speaker 00:
That's right.

[00:17:34] Speaker 04:
That seems to me a concession that there's some significant legal problems with the rule itself.

[00:17:43] Speaker 00:
If the court were to reach the merits, that's right.

[00:17:45] Speaker 00:
But again, we think that this is a case where.

[00:17:47] Speaker 04:
So this is an odd position for the government to be in.

[00:17:51] Speaker 04:
It seems to me the government has conceded that the extension of the rule is unlawful, was not promulgated in a proper way.

[00:18:01] Speaker 00:
We haven't made an argument on the merits, and what we've said, I think, is that we've looked at the record here.

[00:18:10] Speaker 00:
There are various circumstances, as the petitioners acknowledge, where you can proceed, an agency may proceed, without going through notice and comment.

[00:18:18] Speaker 00:
The question is whether this fits into one of those categories or whether it could, and we think that remand is the appropriate course to determine that.

[00:18:25] Speaker 04:
Didn't you just tell me that if it was in the district court that you would say,

[00:18:28] Speaker 04:
Some rejections you had to be the plaintiff that's an acknowledge.

[00:18:32] Speaker 00:
We hadn't made an argument.

[00:18:33] Speaker 02:
That's an acknowledgement that the extension was unlawful It arose it I believe an argument where the council acknowledged that no argument had been made and therefore De facto summary judgment should be entered across anyone's mind in the government to simply say we made a mistake We're here wasting time in court You know this error

[00:18:57] Speaker 02:
You'd have to be tiny and cheap to suggest otherwise, Judge Griffiths has said.

[00:19:02] Speaker 02:
Why didn't you just do it correctly?

[00:19:04] Speaker 00:
The agency has been using this time to work with the airlines to get them in a position to do this reporting.

[00:19:10] Speaker 00:
So just to provide some background about what the rule at issue does, it is a substantial change to the way in which baggage handling metrics are gathered and reported.

[00:19:19] Speaker 00:
And it affects not just mobility aids, but all luggage that's checked.

[00:19:23] Speaker 02:
That's not my question.

[00:19:24] Speaker 02:
My question is, why didn't you just say, you're right.

[00:19:27] Speaker 02:
We made a mistake.

[00:19:28] Speaker 02:
And notice and comment is appropriate.

[00:19:31] Speaker 02:
So all affected parties will have an opportunity to weigh in.

[00:19:35] Speaker 02:
We'll now do it.

[00:19:37] Speaker 00:
Our view is that if there was a timely challenge that was brought that kind of notice to the agency, we would have undertaken it.

[00:19:42] Speaker 02:
Can't the government just do what's right because it's right, not because it's pursuant to a timely challenge?

[00:19:49] Speaker 02:
We're just wasting time.

[00:19:50] Speaker 02:
You're wasting time in court.

[00:19:52] Speaker 02:
There are merits issues.

[00:19:53] Speaker 02:
Why are we wasting this time?

[00:19:55] Speaker 00:
Well, that's why I, Your Honor, wanted to make sure the court is aware that the agency has not been wasting time insofar as the agency has been using this time to ensure that the airlines are able to comply, not for notice or on comment, Your Honor.

[00:20:09] Speaker 02:
That's what we're talking about.

[00:20:10] Speaker 02:
I understand that, Your Honor.

[00:20:12] Speaker 02:
I mean, I've seen this over many years when it does happen, and it's perplexing every time it does.

[00:20:18] Speaker 02:
because there's another approach.

[00:20:19] Speaker 02:
And you are the government, after all.

[00:20:21] Speaker 02:
And why couldn't you say, we made a mistake?

[00:20:24] Speaker 02:
So let's have notice and comment.

[00:20:25] Speaker 02:
And indeed, we might get something useful from it.

[00:20:29] Speaker 04:
January 1, 2019, it's over.

[00:20:32] Speaker 04:
We get the new rule.

[00:20:34] Speaker 00:
The new rule is in effect then.

[00:20:35] Speaker 04:
It will be in effect then.

[00:20:36] Speaker 00:
Absolutely, Your Honor.

[00:20:40] Speaker 00:
Thank you very much for your time.

[00:20:41] Speaker 04:
Thank you very much.

[00:20:42] Speaker 04:
I'll give you back two minutes for rebuttal.

[00:20:45] Speaker 01:
Thank you, Your Honor.

[00:20:47] Speaker 01:
I just want to make a couple very quick points.

[00:20:49] Speaker 01:
First of all, the agency did disclaim the 4171 argument, and that's at page 94.

[00:20:54] Speaker 04:
On January 1st, 2019, which is, what, four or five months away, the rule goes into effect, right?

[00:21:01] Speaker 01:
Yes, Your Honor.

[00:21:03] Speaker 01:
Your Honor.

[00:21:04] Speaker 04:
So we're here.

[00:21:05] Speaker 04:
You know, it normally takes us a while to get opinions done.

[00:21:08] Speaker 04:
And if it's me, it takes a long while to get an opinion done.

[00:21:13] Speaker 04:
And for what?

[00:21:14] Speaker 04:
It's January 1.

[00:21:15] Speaker 04:
You're going to get exactly

[00:21:18] Speaker 04:
what you want.

[00:21:19] Speaker 04:
Now, one could argue that the government's litigation strategy has denied you what maybe you were entitled to earlier before.

[00:21:31] Speaker 04:
But we're right now in September of 2018.

[00:21:34] Speaker 04:
We're a couple of months away from the resolution of this matter.

[00:21:39] Speaker 01:
Your Honor, the reporting data in this case is vital.

[00:21:43] Speaker 01:
as the department found in its original rulemaking.

[00:21:45] Speaker 01:
It's vital to ensuring that travel is accessible for all passengers.

[00:21:50] Speaker 04:
If we were to side with you, just the way the clock runs, if we were to side with you, let's say it goes back to the district court in six weeks, or a month, or a month, then you're back in the district court in a month, you've got to schedule

[00:22:07] Speaker 04:
hearings there, they're busy there, and maybe you'd get relief in the beginning of December.

[00:22:15] Speaker 04:
And then you're only four weeks away from getting what you really want.

[00:22:19] Speaker 04:
Why are we here?

[00:22:21] Speaker 04:
Why are we doing this?

[00:22:21] Speaker 01:
Your Honor, first, I'd like to make just a couple quick points.

[00:22:23] Speaker 01:
First of all, I think any additional day early that this reporting date is made available is important to Paralyzed Veterans of America.

[00:22:31] Speaker 04:
And secondly, I would say... Is one month

[00:22:34] Speaker 01:
I think that that is important, especially given that that would be the holiday season when travel is going to be up.

[00:22:39] Speaker 01:
Absolutely, one month is important.

[00:22:41] Speaker 01:
But second, I would point out, Your Honor, that courts have often held that even if an effective date, even if there's a challenge like this and a compliance date passes, a statement from the court that what happened was unlawful is important.

[00:22:53] Speaker 01:
And you have to understand that, you know,

[00:22:55] Speaker 01:
A4A, the lobbyist group that sought this delay, has now made a comment to the agency asking them to completely repeal this reporting requirement.

[00:23:06] Speaker 01:
And I think that a statement from this court that what would happen here was unlawful might discourage the department from proceeding as it did before.

[00:23:15] Speaker 01:
I'd like to make a point about reasonable grounds.

[00:23:17] Speaker 01:
Thank you very much, Your Honor.

[00:23:18] Speaker 01:
Even if Your Honors disagree that this case was appropriate in the district court,

[00:23:22] Speaker 01:
The petitioners are still due a remedy.

[00:23:25] Speaker 01:
Congress has made clear that in certain limited cases, reasonable grounds excuse a late-filed petition.

[00:23:31] Speaker 01:
Now, of course, Your Honors, this circuit generally looks at whether there's some sort of agency-created confusion that wells the public, but I think that absolutely has happened here when you have an agency citing the wrong statutes and then trying to come before the court and say, never mind, wait.

[00:23:46] Speaker 04:
Your friend said that

[00:23:49] Speaker 04:
Earlier in your pleadings, you acknowledged that there was authority under 708 and 709 to do so.

[00:23:57] Speaker 04:
So how do you respond to her point that there's no confusion on the part of your client?

[00:24:05] Speaker 01:
Your Honor, first of all, yes, we did cite 41708 and 41709 in our complaint.

[00:24:10] Speaker 01:
We were aware of it when we filed the complaint.

[00:24:12] Speaker 01:
PVA was not represented by anyone during the 60-day period.

[00:24:18] Speaker 01:
It wasn't until after the 60-day period that they sought counsel.

[00:24:21] Speaker 01:
And I think so as a member of the general public, they should not be required to go searching through the U.S.

[00:24:26] Speaker 01:
Code to find other statutes that might apply.

[00:24:28] Speaker 03:
Refresh me.

[00:24:30] Speaker 03:
I don't recall that argument, the argument you just made, which is a good argument.

[00:24:35] Speaker 03:
Was that in your brief?

[00:24:36] Speaker 01:
Yes, Your Honor.

[00:24:37] Speaker 01:
It's towards the end of our reply brief.

[00:24:39] Speaker 01:
We make the argument and we distinguish the cases where this Court has held the confusion is not a sufficient ground.

[00:24:47] Speaker 03:
In all of those cases... But it wasn't in your top-side brief.

[00:24:51] Speaker 01:
I think we do reference it in our opening brief, but we certainly give it more space in the reply brief.

[00:24:56] Speaker 01:
Yes, Your Honor.

[00:24:57] Speaker 01:
And the cases that hold the confusion isn't an excuse.

[00:25:00] Speaker 01:
In those cases, there simply isn't the agency error that there is in this case.

[00:25:05] Speaker 01:
So recognizing that it's a limited exception, we would implore this Court to apply it here, where the agency has made such an egregious error, has acted unlawfully as they concede.

[00:25:15] Speaker 02:
And what do you envision, if you were to prevail, what do you envision happening?

[00:25:20] Speaker 02:
I think... What is your best case scenario?

[00:25:23] Speaker 02:
So here's what's going to happen in your mind.

[00:25:25] Speaker 02:
What is that?

[00:25:26] Speaker 04:
It goes back to the district court... First of all, it's that Griffith doesn't write.

[00:25:30] Speaker 04:
It gets out quickly.

[00:25:31] Speaker 02:
It just goes back later.

[00:25:35] Speaker 01:
Well, Your Honors, I think whether the case belongs here or in the district court, the government has conceded the merits, and so petitioners are due a win, whether that's the summary judgment grant or the grant of the petition for review, and in that case,

[00:25:47] Speaker 01:
We have argued that the rule should be vacated, given the egregiousness of the error.

[00:25:51] Speaker 01:
In addition, the industry would not be greatly affected.

[00:25:54] Speaker 01:
As Your Honor's notes, they should be working diligently towards it.

[00:25:57] Speaker 02:
The rule should be vacated?

[00:25:58] Speaker 02:
Which rule are you talking about?

[00:25:59] Speaker 01:
The delay rule should be vacated, not a deadline.

[00:26:01] Speaker 03:
And then the agency has prosecutorial discretion whether to enforce it or not.

[00:26:07] Speaker 03:
And if the airlines are not prepared for an immediate reporting, the agency might well say, well, you know, we'll give you a break until January 1st and go right back where you started from.

[00:26:18] Speaker 01:
Your Honor, 14 CFR 234.12 does give the agency the ability to grant waivers to individual airlines, but only on a showing of cause.

[00:26:25] Speaker 01:
And so we do think that it is important that the general rule is that this reporting requirement

[00:26:31] Speaker 01:
is in effect and to the extent that the agency wants to work with individual airlines, of course they have the authority to do that.

[00:26:37] Speaker 01:
They have the authority to do that after 2019 for that matter.

[00:26:40] Speaker 01:
Your Honor, I don't think that has any effect on the remedy the petitioners are due here as a legal matter.

[00:26:44] Speaker 03:
Well, I guess the argument for cause would be we thought you passed a proper rule giving us an extension until January 1st.

[00:26:53] Speaker 01:
That could be their argument, yes.

[00:26:55] Speaker 01:
But again, I think any day that this is, I see that I'm far over and I will sit down.

[00:27:00] Speaker 01:
Thank you very much.

[00:27:01] Speaker 04:
Thank you very much.