The D.C. Circuit decided one merits case involving the Essential Air Service program, stayed an interim final rule governing commercial driver’s licenses, and denied en banc rehearing of the mandamus order in the Alien Enemies Act case.

Essential Air Service

First, in Southern Airways Express, LLC v. U.S. Department of Transportation, the court unanimously denied a petition for review of DOT’s 2024 order selecting SkyWest Airlines as the Essential Air Service provider for Morgantown, West Virginia. Congress created the EAS program when it deregulated the airline industry to ensure continued passenger service to small communities. Southern, the incumbent provider and a disappointed applicant, challenged the order as lacking substantial evidence and as arbitrary and capricious.

The court first held that it had jurisdiction under 49 U.S.C. § 46110(a). That provision permits “a person disclosing a substantial interest in order issued by the Secretary of Transportation” to file a petition for review. Although the Tucker Act vests jurisdiction in the Court of Federal Claims, it is not exclusive because Section 46110(a) clearly applies as well.

The court then denied the petition on the merits. It held that DOT’s order was supported by substantial evidence on all five relevant factors in 49 U.S.C. § 41733(c)(1). First, SkyWest submitted evidence of its reliability. Second, SkyWest has a codesharing agreement with United, which allows customers to purchase tickets from United and benefit from United’s frequent-flier program. Third, a committee formed by Morgantown recommended SkyWest because it proposed to fly to two major hubs, instead of one. Fourth, SkyWest submitted a marketing plan. Fifth, SkyWest proposed subsidies of $6 to $6.9 million, which was in the middle of the pack.

The court further held that DOT’s order was not arbitrary and capricious. DOT discussed all five factors. It also identified three (reliability, codesharing, and community preference) that weighed most heavily in favor of SkyWest. And as the court explained, DOT’s order was not required to be lengthy to be lawful.

Commercial Driver’s Licenses

In Lujan v. Federal Motor Carrier Safety Administration, a divided special panel stayed the FMCSA’s new interim final rule on commercial driver’s licenses for individuals with a foreign domicile. The IFR prohibits states from issuing such CDLs unless two requirements are satisfied. First, the applicant must have an unexpired foreign passport. Second, the applicant must have an unexpired Form I-94/94A with a classification of H-2A (temporary agricultural worker), H-2B (temporary non-agricultural worker), or E-2 (treaty investor).

The majority (Judges Wilkins and Pan) first found a likelihood of success on three claims. First, FMCSA was likely required to “consult[] with the States” under 49 U.S.C. § 31308. The majority rejected FMCSA’s contemporaneous explanation that consultation should be excused because of impracticality and the low cost of the rule to states. Second, FMCSA likely did not satisfy the good-cause exception to the notice-and-comment requirement. FMCSA conceded that there was “not sufficient evidence . . . to reliably demonstrate a measurable empirical relationship between the nation of domicile for a CDL driver and safety outcomes.” FMCSA also identified only five fatal crashes involving non-domiciled holders. Third, for essentially the same reason and reliance interests, FMCSA likely acted arbitrarily and capriciously.

Judge Henderson dissented. She would have found a likelihood of good cause to forego notice and comment, based on an expected surge of applicants before the rule could be finalized. As to arbitrariness and capriciousness, she reasoned that states cannot check a foreign-domiciled applicant’s driving record (as contemplated by the previous rule) and that FMCSA identified five recent fatal crashes caused by foreign-domiciled CDL holders. Finally, Judge Henderson would have concluded that it is “unclear” whether FMCSA could dispense with consultation based on impracticality or low direct costs to states from the rule.

Alien Enemies Act Contempt Proceedings

Finally, in en banc news, the full D.C. Circuit denied rehearing of the mandamus order in J.G.G. v. Trump. The matter involves the government’s willful removal of individuals to El Salvador under the Alien Enemies Act, despite a temporary restraining order. In April, the district court found probable cause for criminal contempt and offered the defendants an opportunity to purge the contempt. A divided special panel of Judges Pillard, Katsas, and Rao entered an administrative stay. In August, the same panel issued a writ of mandamus, although the majority of Judges Katsas and Rao did not agree on a rationale. While the case was pending, the individuals were transferred to Venezuela.

The denial of rehearing en banc was accompanied by three opinions. Judges Pillard, Wilkins, and Garcia concluded that rehearing would be inappropriate because “the panel’s order does not prevent the district court from exercising its contempt authority” and the fractured order “has no precedential effect.” Judge Millett dissented in a one-paragraph opinion. Judge Pan, joined by Judge Childs, dissented in a longer opinion and counted six votes agreeing that “the district court did not err.”