1. Air Safety

2023 Litigation and Regulatory Report Summary

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2023 Litigation and Regulatory Report Summary

 FlyersRights Litigation and Regulatory Report November 2023

SAFETY ISSUES

Seat Size Mandamus Petition, 22-1004 (D.C. Cir.): Denied on March 3, 2023

  • Petitioned on January 12, 2022
  • Oral Argument held on September 12, 2022
  • FlyersRights’ Rulemaking Petition filed on October 5, 2022
  • The FAA argues that the 2018 FAA Reauthorization Act was ambiguous, and that it does not have to set minimum seat standards if it finds them unnecessary for safety
  • A 3-0 court (Judge Tatel’s final oral arguments) held that the Flyers Rights did not make a “‘clear and indisputable’” showing…that any seat-size regulations ‘are necessary for the safety of passengers.’”

Minimum Seat Size Rulemaking Petition

  • Rulemaking Filed: October 5, 2022 (3 year anniversary of the Congressional deadline):

https://flyersrights.org/flyersrights-files-minimum-seat-rulemaking-with-the-faa

  • DOT Denial: April 14. 2023:

https://img1.wsimg.comhttps://new.flyersrighhttps://new.flyersrights.org/wp-content/uploads/2025/11/FAA-Denial-of-Seat-Size-Rulemaking-Petition-4.pdf

  • Petition for Reconsideration: July 13, 2023:

https://ihttps://new.flyersrights.org/wp-content/uploads/2025/11/FlyersRights-Petition-for-Reconsideration-7.13.pdf

  • What the Petition Demanded: The petition called for 9 minimum seat size dimensions that would accommodate the safety and health needs of over 90% of the American population. These dimensions include seat pitch and seat width. The petition cited ergonomic and health studies and rebutted conclusions and assumptions made by FAA and CAMI.

FAA Actions:

Delayed Release of CAMI Study in its official response to Congress. CAMI report finished in January 2021 but released on March 31, 2022.

Request for Information: Docket Number: FAA-2022-1001:

https://www.regulations.gov/document/FAA-2022-1001-0001

  • 20,840+ comments as of 10/28/2022
  • Published on August 3, 2022
  • Comment Deadline was November 1, 2022
  • FlyersRights submitted a comment summarizing that 98-99% of comments were in favor, and highlighting the issues that commenters raised, including the inability to fit in seats, the inability to get in or out of the seats and rows, deep vein thrombosis, other health issues, and personal space issues

737 MAX FOIA Appeal, 21-5257 (D.C. Cir.): Denied 

  • Filed on December 15, 2021
  • Appealed the U.S. District Court Decision in 19-cv-03749 (September 16, 2021)
  • The Circuit Court denied FAA’s motion for summary affirmance (dismissal of the case)
  • The District Court held that the FAA properly withheld records under Exemption 4
  • Amicus filed on June 1, 2022
  • Decision: https://law.justia.com/cases/federal/appellate-courts/cadc/21-5257/21-5257-2023-06-30.html
  • The D.C. Circuit held that the FAA’s promises of transparency were not specific enough and that FAA policy requires FAA to not release documents that would harm the competitive position of a party.
  • The court also held that the FAA fulfilled its duty to segregate releasable information from non-releasable information, noting that release of more information would reveal confidential information that would harm Boeing’s competitive position
  • The court denied the argument that means of compliance formed a body of secret agency law

CONSUMER PROTECTION ISSUES

Executive Action

  • January 2023 State of the Union Address targeting junk fees:

“My administration is also taking on “junk” fees, those hidden surcharges too many businesses use to make you pay more. For example, we’re making airlines show you the full ticket price upfront and refund your money if your flight is cancelled or delayed. We’ve reduced exorbitant bank overdraft fees, saving consumers more than $1 billion a year. We’re cutting credit card late fees by 75%, from $30 to $8. Junk fees may not matter to the very wealthy, but they matter to most folks in homes like the one I grew up in. They add up to hundreds of dollars a month. They make it harder for you to pay the bills or afford that family trip. I know how unfair it feels when a company overcharges you and gets away with it. Not anymore. We’ve written a bill to stop all that. It’s called the Junk Fee Prevention Act. We’ll ban surprise “resort fees” that hotels tack on to your bill. These fees can cost you up to $90 a night at hotels that aren’t even resorts. We’ll make cable internet and cellphone companies stop charging you up to $200 or more when you decide to switch to another provider. We’ll cap service fees on tickets to concerts and sporting events and make companies disclose all fees upfront. And we’ll prohibit airlines from charging up to $50 roundtrip for families just to sit together. Baggage fees are bad enough – they can’t just treat your child like a piece of luggage. Americans are tired of being played for suckers. Pass the Junk Fee Prevention Act so companies stop ripping us off.

  • Biden Speech on Junk Fees (June 15, 2023):

https://www.whitehouse.gov/briefing-room/speeches-remarks/2023/06/15/remarks-by-president-biden-on-protecting-consumers-from-hidden-junk-fees/

  • Draft Merger Guidelines (FTC): July 19, 2023:

https://www.regulations.gov/docket/FTC-2023-0043

The White House said four decades of "misguided economic philosophy" had resulted in rising concentration in three-fourths of U.S. industries, costing the median U.S. household up to $5,000 a year in higher prices and lower wages.

"We cannot accept bad mergers that lead to mass layoffs, higher prices and fewer options for workers and consumers," Biden said. "I've said before, capitalism without competition isn't capitalism. It's exploitation." https://www.reuters.com/world/us/white-house-expands-war-junk-fees-rental-housing-unveils-new-merger-guidelines-2023-07-19/

DOJ and DOT Action on Proposed JetBlue-Spirit Merger

  • Merger plan announced on July 28, 2022
  • DOJ filed lawsuit on March 7, 2023 in federal district court for the District of Massachusetts
    • Lawsuit with the Attorneys General of Massachusetts, New York, and District of Columbia
    • Later joined by the Attorneys General of California, Maryland, New Jersey, and North Carolina.
  • Trial started on October 31, 2023
  • Tentatively scheduled to last through December 5, 2023

DOT Proposed Rulemakings

  1. Transparency of Ancillary Fees: Notice of Proposed Rulemaking: October 20, 2022: 

https://www.regulations.gov/comment/DOT-OST-2022-0109-0474

  1. Codifying Refunds and Pandemic Refunds

https://www.regulations.gov/comment/DOT-OST-2022-0089-5303

  1. Delay Compensation: Intent to Initiate a Rulemaking Announced: 
  1. Refunding Airline Tickets and Fees for Delayed Checked Bags and Ancillary Services That Are Not Provided

https://www.regulations.gov/comment/DOT-OST-2016-0208-0108

  1. Rights of Airline Passengers When There Are Controllable Flight Delays or Cancellations

NPRM to be published in late 2023-early 2024

RIN: 2015-AF20

“This rulemaking would require U.S. and foreign air carriers to adopt and adhere to customer service plans identifying essential services (meals, rebooking, hotel, transportation to or from hotel, timely customer service) and  compensation which airlines would be required  provide to mitigate passenger inconveniences when the cause of a cancellation or delay for flights to, within and from the United States was due to circumstances within the airline’s control.  In addition, the rulemaking would define when a delay or cancellation  would be considered  controllable by the airline meaning passengers would be entitled to receive the essential services (including  compensation ) to mitigate their inconvenience. The rulemaking would also examine how best to ensure passenger awareness of the services and  compensation that would be available to them following a controllable delay or cancellation.”

DOT Dashboards

  1. Family Seating and (2) Accommodations for Delays and Cancellations:

https://www.transportation.gov/airconsumer/airline-customer-service-dashboard

FOIA Request to FAA/CAMI

  • Requested the following records in October 2022:
  1. All videos of emergency evacuation demonstrations and the boarding and placement of test subjects in the mock up airline seats.
  2. Individual survey questionnaire response forms from all participants and subjects, identified by participant ID number, including those who self-reported that they could not fit in the 26 inch seat.
  3. Individual egress times, identified by participant ID number, including those removed from the analysis,
  4. Individual seat-to-aisle times, identified by participant ID number
  5. Individual anthropometric measurements, identified by participant ID number, including those dismissed from the test for failing to fit in the 28 inch seat or dismissed for other reasons.