[00:00:00] Speaker 00: Case number 22-10-04. [00:00:02] Speaker 00: In Ray Flowers Rights Education Fund, Inc. [00:00:06] Speaker 00: Doing business at flowersrights.org and Paul Hudson Petitioners. [00:00:10] Speaker 00: Mr. Kurt Patrick for the petitioners, Mr. Totaro for the respondents. [00:00:15] Speaker 02: Good morning, Mr. Kirkpatrick. [00:00:17] Speaker 02: Good morning, your honor. [00:00:19] Speaker 02: May I please the court? [00:00:20] Speaker 02: My name is Michael Kirkpatrick and I represent the petitioners. [00:00:24] Speaker 02: Section 577A of the 2018 FAA Reauthorization Act [00:00:29] Speaker 02: states that after notice and comment, the FAA shall issue regulations that establish minimum dimensions for passenger seats, including minimums for seat pitch, width, and length, and that are necessary for the safety of passengers. [00:00:45] Speaker 02: The FAA had a deadline, October 5th, 2019, to get it done. [00:00:51] Speaker 02: We're nearly three years past the statutory deadline, and the FAA has not even begun the rulemaking process. [00:00:58] Speaker 02: Therefore, mandamus relief is warranted, and this court should order the FAA to commence rulemaking and issue a final rule within six months of the court's decision. [00:01:09] Speaker 02: Now, the FAA argues that it's required to engage in rulemaking if and only if it determines that minimum seat dimensions are necessary for passenger safety. [00:01:20] Speaker 02: But that argument should be rejected for several reasons. [00:01:24] Speaker 02: First, the statute is written in mandatory terms. [00:01:28] Speaker 02: It says that after. [00:01:29] Speaker 04: Council, would you, as you make your argument about the interpretation of the statute, put it in terms of what your burden of proof is here. [00:01:37] Speaker 04: You have to show that you're clear and indisputably entitled to a relief, right? [00:01:42] Speaker 02: That is correct. [00:01:43] Speaker 04: Okay, so we're not just interpreting the statute as we would in a Chevron case. [00:01:47] Speaker 04: You have to show that under this statute, you are clearly and indisputably entitled to a relief, right? [00:01:54] Speaker 02: That is the standard, Your Honor. [00:01:55] Speaker 04: So why don't you make your argument? [00:01:58] Speaker 02: Well, I will. [00:02:01] Speaker 02: The mandatory language here, it doesn't say if necessary. [00:02:07] Speaker 04: It says and. [00:02:08] Speaker 02: It says and that are necessary. [00:02:11] Speaker 02: And I think the most natural reading of that phrase, that are necessary for the safety of passengers, is that it indicates the criteria [00:02:21] Speaker 02: that the agency is to use in setting the standards, which is safety. [00:02:26] Speaker 04: Suppose I asked you to buy me a car that is fast and red. [00:02:35] Speaker 04: Did you get me a car that's just fast in that regard to color? [00:02:43] Speaker 02: No, but here I think it's different and I think it favors our argument is that it says they shall issue regulations and those regulations must be those that are necessary for safety. [00:02:57] Speaker 02: Safety as opposed to something else. [00:02:59] Speaker 04: You shall get me a car that is fast and rent. [00:03:05] Speaker 02: Yes, shall give us a rule. [00:03:08] Speaker 04: Yeah, no, because shall get me a car that's fast and red. [00:03:10] Speaker 04: So can you get me a car that's fast and not red? [00:03:14] Speaker 02: No. [00:03:16] Speaker 02: Right. [00:03:16] Speaker 02: No, there are two aspects of this. [00:03:18] Speaker 02: One is to issue a rule setting forth minimum seat dimensions. [00:03:23] Speaker 02: The other aspect is that when setting those minimums, the criteria that should be used is minimums necessary for safety, as opposed to, let's say, comfort or convenience. [00:03:37] Speaker 01: Your reading of the statute council, given its mandatory terms, consistent with at a minimum requiring the agency to issue a notice. [00:03:54] Speaker 01: And I'm trying to get to the point. [00:03:57] Speaker 01: Suppose the agency issues a notice, it receives comments, and it reviews those comments, and in its expert judgment, [00:04:07] Speaker 01: changes are not necessary to ensure safety of the passengers. [00:04:14] Speaker 01: And the agency is able to give some reasons for that. [00:04:20] Speaker 01: And for example, they might be in terms of the volume capacity, physical volume capacity of the plane, where you have a certain number of passengers to enable them to evacuate [00:04:37] Speaker 01: within what the agency determines is the time, the maximum time. [00:04:48] Speaker 01: In other words, as I understood your argument, maybe I misunderstood it, and maybe I misunderstood the government, I thought the resistance was not so much to having a public discussion of this issue [00:05:06] Speaker 01: and with the FAA coming up with its reasons why it doesn't think any changes are necessary after considering the comments, as opposed to Congress saying, here are the seat dimensions, we've determined that those are necessary for public safety, end of discussion. [00:05:29] Speaker 02: Yes, your honor. [00:05:30] Speaker 02: I think the point that we're trying to make is that currently there are no minimum seat dimensions. [00:05:38] Speaker 02: Congress said that the FAA shall establish minimum seat dimensions. [00:05:43] Speaker 02: What those are, that's going to go to the merits of the eventual rule. [00:05:48] Speaker 02: And maybe they're going to codify the current seat dimensions and say that those are all that is required for safety. [00:05:54] Speaker 02: then maybe there will be a challenge on the merits. [00:05:57] Speaker 02: But the point here is that there is no regulation now on seat pitch, width, or length. [00:06:04] Speaker 02: Congress wants a rule on those dimensions. [00:06:08] Speaker 02: And to assert that it need not engage in rulemaking unless and until it decides that such a rule is necessary for safety, that would be sort of absurd because there must be some minimum size below which safety would be impacted. [00:06:25] Speaker 02: And the court, this court recognizes such 2017. [00:06:28] Speaker 03: Mr. Kirkpatrick, can you give the best case where our court has granted mandamus under the following circumstances? [00:06:42] Speaker 03: Number one, the agency has consistently expressed an intent to act. [00:06:48] Speaker 03: They haven't declared or defying a statute. [00:06:51] Speaker 03: That's condition number one. [00:06:53] Speaker 03: And condition number two, the agency's tardiness is less than three years. [00:07:00] Speaker 02: Are there any cases that fit that? [00:07:03] Speaker 02: No, Your Honor, none comes to mind. [00:07:04] Speaker 02: I think the peer case that we cite in our brief would be the closest. [00:07:09] Speaker 02: It has the first of your criteria, but it was longer than three years. [00:07:14] Speaker 03: Sounds like we would be breaking new ground then in terms of [00:07:20] Speaker 03: granting mandamus under these circumstances, and we would be breaking new ground with regard to a statutory command that even if you're right about its meaning, maybe fall short of you being indisputably right. [00:07:38] Speaker 03: And I think some of our precedents use the word indisputable as a condition for granting mandamus. [00:07:46] Speaker 02: Well, just Walker, I would point to the fact that Congress gave a one year deadline to do a rulemaking, which is pretty unusual. [00:07:54] Speaker 02: That's a very tight time frame. [00:07:56] Speaker 02: And I think that shows that Congress did not want this rulemaking to lag. [00:08:01] Speaker 02: I would also point out that at this point, [00:08:03] Speaker 02: The agency is not saying they intended to do a rulemaking. [00:08:07] Speaker 02: In July, and you see this in their 28-J letter, they solicited comments to determine whether to do a rulemaking. [00:08:15] Speaker 02: So they haven't even committed to doing a rulemaking. [00:08:18] Speaker 02: They're still trying to determine if they think they should do a rulemaking. [00:08:21] Speaker 03: Let's say that we can get to the track six factors. [00:08:26] Speaker 03: The third factor into a degree, the fifth inquires into whether health and welfare are an issue. [00:08:33] Speaker 03: I want you to make an assumption that I'm sure you don't agree with, but it will help me try to figure out this case. [00:08:39] Speaker 03: Assume there is insufficient record evidence that agency action on seat size will mean a significant improvement in health and safety. [00:08:51] Speaker 03: Does that affect how we apply tracking? [00:08:56] Speaker 02: I don't think so, because Congress thought in 2018 that there was a need for these minimums for safety. [00:09:06] Speaker 02: So I think Congress has already sort of made that determination that this is in fact something necessary for health and safety. [00:09:13] Speaker 02: And I don't think the agency argues that seat dimensions at some point [00:09:19] Speaker 02: will impact emergency evacuations. [00:09:22] Speaker 02: Also, it's not just emergency evacuations. [00:09:24] Speaker 02: There are other safety factors like race position, thrombosis, and then they've addressed that to a degree. [00:09:31] Speaker 03: If car travel is more dangerous than air travel, maybe it's not, but that's sort of the conventional wisdom. [00:09:37] Speaker 03: You know, they say if you're afraid to fly a plane, well, don't worry, the drive to the airport was more dangerous than the flight, that kind of thing. [00:09:43] Speaker 03: Should that affect whether [00:09:45] Speaker 03: increasing seat size, which would increase the price of seats for passengers, possibly decrease the quantity of seats on a plane, would actually cost more lives than it will save? [00:09:56] Speaker 02: Well, I think that's something that would go to the merits of the rule. [00:10:01] Speaker 02: And the agency could investigate that. [00:10:04] Speaker 02: And in the rulemaking, that might be a reason that they come out one way or another. [00:10:09] Speaker 02: Again, we're just asking- Would it be okay to come out with the other? [00:10:14] Speaker 03: Come out and say, [00:10:15] Speaker 03: the current seat sizes are sufficiently big that no regulation is necessary. [00:10:21] Speaker 02: And we accept the risk that the resulting rule might not be one we like. [00:10:27] Speaker 02: I had hoped to reserve some time for rebuttal, but I see I've used my 10 minutes. [00:10:33] Speaker 03: I'm happy to give you a couple of minutes on rebuttal, but first I want to make sure that Judge Tatel and Judge Rogers don't have any other questions, Judge Rogers. [00:10:40] Speaker 01: I just want to be clear as to counsel's response to Judge Walker's last question. [00:10:50] Speaker 01: I thought there were, he posed a question and they answered, I don't know, didn't quite hit the nail on the head. [00:10:59] Speaker 01: In other words, counsel is posing that you can have a rulemaking that results in no minimum [00:11:10] Speaker 01: mandatory seat requirements or wasn't that the premise of the judge's question? [00:11:16] Speaker 01: I just need to be clear on that. [00:11:20] Speaker 02: I may have misunderstood and I apologize if I did. [00:11:23] Speaker 02: I think that the statutory mandate is to have a rule that establishes minimums. [00:11:30] Speaker 02: What those minimums are, we understand that there's risk that the agency could say the current status quo is fine or even move in the wrong direction. [00:11:39] Speaker 02: I do think they have to establish minimums. [00:11:42] Speaker 02: And that's important because right now there is no rule. [00:11:45] Speaker 02: And so there's nothing to stop the continued sort of shrinkage of the seat dimensions. [00:11:52] Speaker 04: But didn't the record, there's a letter in the record from the agency which says that seat size, unlikely to go below seat, what do you call it? [00:12:07] Speaker 04: The 28 inches. [00:12:09] Speaker 04: It's not unlikely to go below the 28 inches without violating other regulation, right? [00:12:18] Speaker 02: That is the agency's position. [00:12:20] Speaker 04: But their position is that it would violate their regulations to go below it. [00:12:24] Speaker 04: And their conclusion is that as long as it doesn't go below 28 inches, there is no safety, as uncomfortable as they may be. [00:12:31] Speaker 02: Yes, but there's two bits of speculation in the agency's position. [00:12:37] Speaker 02: One is that they're assuming the seat length will not drop below 18th, and they're also assuming that nine inches of space is needed to have emergency egress after a crash and the seat has deformed. [00:12:52] Speaker 02: but we don't know for sure that that would be necessary. [00:12:56] Speaker 02: And those regulations, which are independent, are a couple of decades old, and people have gotten bigger, Americans in particular, have gotten bigger during that time. [00:13:07] Speaker 03: Anything else, Judge Rogers? [00:13:09] Speaker 01: No, thank you. [00:13:12] Speaker 01: Judge Walker. [00:13:15] Speaker 03: Thank you, Mr. Kirkpatrick. [00:13:16] Speaker 04: We'll hear from Mr. Tutor. [00:13:28] Speaker 05: It pleased the court Martin to taro for the federal respondent. [00:13:33] Speaker 05: The Federal Administration is in the midst of collecting comments from the public addressing seat dimensions and safe. [00:13:42] Speaker 05: The comment period doesn't close until November 1st, but the notice has been effective in eliciting the public's view. [00:13:51] Speaker 05: As of yesterday, the agency has already received almost 12,000 comments. [00:13:58] Speaker 05: If the comments demonstrate to the agency that additional standards are necessary, it will promulgate a rule. [00:14:05] Speaker 05: And if the agency concludes that current standards are adequate, that decision will be subject to judicial review. [00:14:13] Speaker 04: I'd like you to get to focus on the standard that we're applying here. [00:14:19] Speaker 04: And this is a mandamus action, right? [00:14:22] Speaker 04: Yes, Your Honor. [00:14:23] Speaker 04: Okay. [00:14:23] Speaker 04: So you say in your brief that [00:14:26] Speaker 04: The delay here is not egregious. [00:14:29] Speaker 04: And therefore, we don't even have to engage in a discussion about what Section 577 even obligates the agency to do, right? [00:14:40] Speaker 04: Yes, Your Honor. [00:14:41] Speaker 04: I'm not sure that's the way we look at mandamus. [00:14:45] Speaker 04: We first have to have jurisdiction. [00:14:47] Speaker 04: And to have jurisdiction, we have to look at the statute, don't we? [00:14:51] Speaker 04: We have to look at the statute. [00:14:54] Speaker 04: But to find out whether there's a clear and indisputable right to relief, if there is, then I think under our case law, then we go look at the question of whether or not the delay is egregious or not. [00:15:07] Speaker 04: But we first have to get over the jurisdictional hump. [00:15:09] Speaker 04: And I don't see how we do that without looking at the statute. [00:15:12] Speaker 05: Your Honor, I'm not sure under track that that's a jurisdiction. [00:15:15] Speaker 04: This is before we even get to the track. [00:15:19] Speaker 04: Isn't that the way mandamus works? [00:15:21] Speaker 05: So our point was merely that even if there were a violation, the court could. [00:15:26] Speaker 04: Well, that's not what you said. [00:15:27] Speaker 04: Well, I wouldn't have asked the question if that's what your brief had said, but that's not what you're saying. [00:15:32] Speaker 04: Right. [00:15:33] Speaker 04: You tell us in the brief, we do not have to engage in a discussion of what the statute be. [00:15:38] Speaker 05: I think under track, it's already sort of like a presumptive jurisdiction analysis anyway. [00:15:44] Speaker 05: If the court disagrees though, happy to engage. [00:15:46] Speaker 04: Why don't you tell us what you think about the statute and specifically respond to your argument that, yes, it does say and affect safety, but as he points out, the agency hasn't issued a regulation at all. [00:16:07] Speaker 05: But yes, Your Honor, as Your Honor pointed out, the last phrase of the statute says, and that are necessary for the safety of passengers under cannons like the conjunctive cannon under this court's precedence, like Loving versus IRS from 2014, the word and does something and it's a requirement of the statute. [00:16:26] Speaker 05: So and functions as a requirement rather than as, for example, an or. [00:16:30] Speaker 05: And so the way the statute is phrase, it provides the administrator of the FAA with discretion to determine [00:16:37] Speaker 05: whether a regulation is necessary for the safety of passengers. [00:16:40] Speaker 04: Well, one way to interpret this statute differently than I suggested is the agency would have to issue, the agency's position is there's no safety problem unless it goes below 28 inches, right? [00:16:57] Speaker 04: Is that right? [00:16:58] Speaker 05: That is the current position, but that said, the agency has also asked for public comment. [00:17:03] Speaker 04: Yeah, I understand. [00:17:03] Speaker 04: OK, so that's your position. [00:17:05] Speaker 04: So the way they comply with the congressional directive is they issue regulation which says that if it goes below 28 inches, then here are the, or it can't go below, they could issue regulation which says it can't go below 28 inches, otherwise it would adversely affect safety. [00:17:27] Speaker 04: then you would have a regulation in conformity with a Congress directive. [00:17:31] Speaker 04: But now the agency hasn't issued a regulation at all. [00:17:35] Speaker 05: Your Honor, the agency doesn't understand Congress to have said that it needs new standards if the agency concludes that there is no current problem. [00:17:43] Speaker 04: That's not what the statute says. [00:17:44] Speaker 04: It says you shall issue regulations regarding seat size and that affects safety. [00:17:49] Speaker 04: So isn't it a perfectly logical interpretation to initiate a regulation which says seat size can't go below 28 inches? [00:17:56] Speaker 05: It is a plausible interpretation. [00:17:58] Speaker 05: I don't think it's the most natural interpretation. [00:18:00] Speaker 05: What the statute requires is that the agency, after providing notice and comment, and here the administrator, the FAA, shall issue regulations that are necessary for the safety of passengers. [00:18:11] Speaker 05: And so the critical inquiry there is whether the administrator has discretion if it is not in [00:18:18] Speaker 05: the safety of passengers to not issue a regulation. [00:18:22] Speaker 05: But what I think petitioners interpretation tries to do is to sort of bring that last clause up front as a congressional finding. [00:18:29] Speaker 05: And so it would be [00:18:31] Speaker 05: a clear statement or congressional finding that minimum seat dimensions are necessary for the safety of passengers. [00:18:38] Speaker 05: And then the statute would proceed not after a year the FAA administrator shall issue a regulation, but that is demonstrably not how the statute is written. [00:18:48] Speaker 05: Instead, the agency interprets section 577 to be demanding from the agency to get information from the public to take a fresh look anew at the connection between [00:19:01] Speaker 03: seat dimensions and passenger safety and that is also in conjunction with section 337 which also says there might be a third way to read that last clause that you know it's necessary for safety the first clause describes the topic they shall issue regulations about seat size and then the second clause might limit the types of seat size regulations that can be [00:19:30] Speaker 03: promulgated. [00:19:30] Speaker 03: So, absent the second clause, FAA might be able to limit seat size based on comfort. [00:19:38] Speaker 03: The second clause says no, you're only allowed to make your decision when it's based on safety. [00:19:44] Speaker 03: What's wrong with that? [00:19:45] Speaker 05: I think the question there, Your Honor, would be whether if the agency has determined that no further regulations are necessary for safety, whether it has to nonetheless regulate in this field, which would be a regulation that essentially means nothing. [00:19:58] Speaker 03: I think based on what you just said, then, it wouldn't really matter whether the statute's phrased the way it currently is, which is that, dot, dot, dot, and that, that, that. [00:20:07] Speaker 03: It could just be that, dot, dot, dot, period, end of sentence. [00:20:10] Speaker 03: And the next sentence could say those regulations [00:20:15] Speaker 03: uh, must be based on safety factors, not comfort. [00:20:20] Speaker 05: Your honor, I think if the end clause were removed altogether, then that would be an affirmative obligation to regulate regardless of the necessary for safety. [00:20:30] Speaker 03: Even if the next sentence said what I just said. [00:20:32] Speaker 05: And then the if the next sentence was framed as a description of what came before, then I think that's probably a closer case. [00:20:41] Speaker 05: And I think that [00:20:42] Speaker 05: that could potentially still be a case in which a regulation wouldn't be necessary. [00:20:48] Speaker 05: No further regulation would be necessary if the agency determines that the current regulatory scheme protects the safety of passengers. [00:20:56] Speaker 03: Can I get clarification on the status of notice and comment? [00:20:59] Speaker 03: It sounded like when you started out today, you said that the notice and comment, formal notice and comment period had begun. [00:21:06] Speaker 03: I understand that, right? [00:21:07] Speaker 05: I know you're in the agency has asked the public for notice and comment that the. [00:21:12] Speaker 05: There's been no proposed rulemaking. [00:21:14] Speaker 05: But the difficulty here is that the statute is vague in several respects including this particular respect what it means by notice and comment to be clear. [00:21:24] Speaker 05: This. [00:21:24] Speaker 05: The agency has not engaged in a notice of proposed rulemaking. [00:21:29] Speaker 05: It has just sent out a notice to the public to receive comments to further educate the agency. [00:21:36] Speaker 05: And one important component I want to emphasize about the notice is that it didn't just say, public, send us what you got. [00:21:42] Speaker 05: Instead, it said, what would be most helpful to us is technical data that demonstrates any potential connection. [00:21:50] Speaker 05: And so it's seeking a very specific kind of information. [00:21:52] Speaker 05: But of course, will there be a [00:21:54] Speaker 03: notice of either proposed rule or the notice of a decision to not propose a rule followed by a comment period for that? [00:22:05] Speaker 05: I think the agency, if I understand, there will not necessarily be a notice of proposed rulemaking, but the agency will announce the results if it determines after reviewing all of the thousands of comments that no further regulations are necessary and then that [00:22:25] Speaker 05: order decision statement, whatever it's called, will be a final agency action subject to review under 46, 49 USD 46 110. [00:22:36] Speaker 05: And so the critical point here is that either petitioners will get a rule that they're seeking or there will be an order that is subject to review in this court or wherever the petitioner resides. [00:22:51] Speaker 03: Do you have a guess on when that would happen? [00:22:53] Speaker 05: I don't it's impossible to say just because historically most of the comments have been sent in toward the end of the comment period deadline. [00:23:02] Speaker 05: And this is rather unique in that the public seems very engaged with this issue. [00:23:06] Speaker 05: And we've received the agencies just received thousands and thousands and thousands of comments. [00:23:11] Speaker 05: And it wouldn't surprise me if the majority if we I'm not saying we would do this. [00:23:15] Speaker 03: But if we were to issue an order asking order requiring you to submit a schedule [00:23:24] Speaker 03: or when either proposed rule will be made or a decision to not propose a rule will be made. [00:23:31] Speaker 03: You wouldn't be able to satisfy that order. [00:23:34] Speaker 05: But your honor, I think as cases like bar laboratories demonstrate, there's no need for the court to retain jurisdiction in that scenario. [00:23:41] Speaker 05: But of course, it's within the court's discretion. [00:23:43] Speaker 05: And my only point is that the agency would have a clear view about timing after it knows how many comments it's received and after it takes a look at the content of the comments themselves. [00:23:59] Speaker 03: Judge Rogers, any additional questions? [00:24:02] Speaker 01: No, thank you. [00:24:04] Speaker 03: I think I think we have your thank you. [00:24:07] Speaker 01: Thank you. [00:24:11] Speaker 03: Um, perhaps two minutes for Mr Kirkpatrick. [00:24:14] Speaker 02: Thank you, Your Honor. [00:24:15] Speaker 02: I only have two things to say. [00:24:17] Speaker 02: The first is this current comment period. [00:24:21] Speaker 02: It is not a rulemaking. [00:24:22] Speaker 02: It moves us no closer to a rulemaking because there's no commitment to do a rulemaking. [00:24:29] Speaker 02: They're studying if and whether to do a rulemaking. [00:24:33] Speaker 02: My second point is that on the argument that it is somehow discretionary for the agency to decide whether a rule is necessary, Congress knew the FAA's position on this at the time of enactment. [00:24:51] Speaker 02: The agency had just come out in July of 2018 with a response to a petition for rulemaking on this subject and said the agency doesn't think minimum seat size regulations are necessary for safety. [00:25:07] Speaker 02: And just three months later, Congress essentially overruled that and said, no, we think it is necessary and we are requiring a rule. [00:25:17] Speaker 04: All we have to go on in terms of [00:25:22] Speaker 04: The mandamus question here is the words of the statute, right? [00:25:27] Speaker 04: We're not going to look behind those. [00:25:30] Speaker 04: I mean, maybe we would if this was a Chevron case, assuming Chevron even exists anymore. [00:25:38] Speaker 04: But at this stage, where your burden is to show that you're clear and indisputable grounds for belief, let's see how we can go beyond the plain language of the statute. [00:25:53] Speaker 02: Well, Your Honor, we think that we should prevail under the plan language. [00:25:56] Speaker 04: OK, then let me ask you this, going back to the discussion you and I had earlier. [00:26:01] Speaker 04: Assume, here, I'll give you your side credit. [00:26:04] Speaker 04: Assume there's two plausible interpretations instead. [00:26:08] Speaker 04: The agencies and yours. [00:26:10] Speaker 04: And even assume that yours is more plausible than theirs. [00:26:13] Speaker 04: But theirs is still plausible. [00:26:15] Speaker 04: That is, that the language necessary for safety [00:26:21] Speaker 04: it excuses them from issuing regulation now. [00:26:24] Speaker 04: Let's just assume, because you agreed with me before that that was at least plausible. [00:26:30] Speaker 04: Then yours is more plausible. [00:26:32] Speaker 04: You still have to show that you're clearly and indisputably entitled to move. [00:26:39] Speaker 04: Can you make that argument? [00:26:41] Speaker 04: Go ahead and make that argument for us. [00:26:44] Speaker 04: Explain to us how, given the fact that the agency's interpretation [00:26:48] Speaker 04: Although less plausible, it's still plausible. [00:26:50] Speaker 04: How can you be clearly indisputably entitled? [00:26:54] Speaker 04: What's the argument? [00:26:57] Speaker 02: Three arguments. [00:26:58] Speaker 04: We just need one. [00:27:00] Speaker ?: Go ahead. [00:27:01] Speaker 02: OK, well, I'd like to get this. [00:27:02] Speaker 02: OK, you can have three. [00:27:04] Speaker 02: One is that it is a more natural reading to say that safety is the criteria. [00:27:09] Speaker 04: The more natural doesn't answer the question. [00:27:12] Speaker 04: That's just saying more plausible. [00:27:13] Speaker 02: All right. [00:27:14] Speaker 02: The second would be that it's absurd to say that there might be no minimum. [00:27:20] Speaker 04: we know just as a matter of common sense and basic physics that the agency hasn't said there won't be the agency has said it's unlikely to go below a certain level and presumably if it does they'll issue a regulation. [00:27:35] Speaker 02: But right now there is no regulation on these dimensions. [00:27:39] Speaker 04: Is there any current threat to safety? [00:27:42] Speaker 02: Yes. [00:27:43] Speaker 02: There is? [00:27:44] Speaker 04: Yes. [00:27:44] Speaker 04: I thought even you agreed there wasn't at the current level, at the current dimensions. [00:27:48] Speaker 02: No, we actually think that the agency is wrong with respect to the current dimensions because the one simulation that they did using current seat sizes, the population of volunteers who participated in the simulation do not have the same demographics as the flying public. [00:28:06] Speaker 02: You mean they're not fat? [00:28:09] Speaker 02: Exactly. [00:28:10] Speaker 02: There were no obese people, there were no people over 60, nobody with a disability. [00:28:14] Speaker 04: Wait a minute, people over 60 aren't all fat. [00:28:20] Speaker 03: Let me get you on happier ground, maybe. [00:28:23] Speaker 03: But maybe not, because I think what the FAA said is the issue with evacuation speed is not going to be how fast people can get out of their seats. [00:28:33] Speaker 03: The issue is that line that forms [00:28:37] Speaker 03: middle aisle, you know, and we've all gotten off of an airplane, not an emergency, thank goodness. [00:28:42] Speaker 03: And that line is what is what is slow. [00:28:45] Speaker 03: And so whether or not it takes someone five seconds to get out of their seat, or 25 seconds to get out of their seats, the FAA is saying, there's nowhere to go. [00:28:53] Speaker 03: The line is not moving fast. [00:28:56] Speaker 02: Well, we think the studies are deficient and the Office of Inspector General pointed out some of the missing data and invalid assumptions that underlie some of those studies. [00:29:07] Speaker 02: But again, we accept the risk that the minimum seat sizes established in a proper rulemaking could essentially codify the status quo. [00:29:17] Speaker 03: So you keep saying that, but the statute says that are necessary. [00:29:24] Speaker 03: Usually if the status quo [00:29:26] Speaker 03: is perfectly fine, then a regulation is not necessary. [00:29:31] Speaker 02: But there is no regulation at all right now. [00:29:33] Speaker 02: So there is nothing to stop the most. [00:29:36] Speaker 02: Most of life does not have regulations. [00:29:39] Speaker 03: At least they used to be that way. [00:29:41] Speaker 03: So usually we only I think agencies only do regulations when there's when there's a problem to fix. [00:29:47] Speaker 02: And the FAA decided there was not a problem to fix. [00:29:51] Speaker 02: Congress essentially overruled them and said we want a minimum seat dimension regulation. [00:29:58] Speaker 03: Which table? [00:29:58] Speaker 03: No, Judge Rogers. [00:30:00] Speaker 03: Anything else? [00:30:01] Speaker 03: Yeah. [00:30:03] Speaker 03: Thank you. [00:30:03] Speaker 03: And cases submitted.