The Eleventh Circuit decided six administrative law cases of note during August. This post will focus on three of them, all of which happen to involve transportation. The court vacated the Department of Transportation’s order ending approval of a joint venture between Delta Air Lines and Aerovias de Mexico because the agency arbitrarily departed from precedent. The court upheld the Federal Railroad Administration’s 2024 Crew Size Rule, over a dissent from Judge Branch that addressed (in part) the change-in-position doctrine. And it upheld the Environmental Protection Agency’s approval of the use of a radioactive substance to build a privately owned road, with a discussion of mootness and the use of regulatory preambles. The court also granted review of a Board of Immigration Appeals decision on ineffective assistance of counsel; denied review of a BIA decision on the meaning of “aggravated felony”; and granted rehearing en banc in a case about sovereign immunity.

Delta Air Lines v. U.S. Department of Transportation

In 2016, DOT approved, and granted antitrust immunity for, a joint venture between Delta and Aerovias de Mexico. The joint venture permitted the airlines to coordinate schedules and share revenue. In 2025, DOT ended its approval and the antitrust immunity. In an opinion written by Judge Branch, the Eleventh Circuit vacated the 2025 order on two independent grounds: (1) DOT did not reasonably explain why it used a more limited market analysis than it had in other cases, and (2) DOT did not reasonably explain why it required that the foreign government comply with an “open skies” agreement when it did not in other cases. (As the name implies, an “open skies” agreement removes certain restrictions on flights between two countries.)

First, the Eleventh Circuit concluded that DOT focused on competition at a single airport in a way that was inconsistent with agency precedent. The court found a “uniform practice” of weighing “both pro- and anti-competitive effects” of a joint venture “as a whole,” “across a number of different markets,” including a “broad assessment” “at the network, country-pair, and city-pair levels.” (“Country pair” and “city pair” refer to itineraries between two countries or cities.) By contrast, DOT relied not on networks or routes, but on concerns about the allocation of landing slots at Mexico City Benito Juarez International Airport (MEX) and the Mexican government’s prohibition of all-cargo operations there. 

The court rejected DOT’s argument that there was no departure from precedent because this order terminated a joint venture, but the relevant precedents approved joint ventures. As the court explained, the statutory standard is the same for approval and termination.

Second, the Eleventh Circuit concluded that DOT arbitrarily and capriciously required Mexico to comply with an open-skies agreement. DOT had approved other airline joint ventures without an applicable open-skies agreement. DOT argued that, in those cases, the foreign government nonetheless cooperated with the United States. But the court held that DOT did not adequately explain why it went a step further by requiring implementation of the agreement in this case.

Judge Rosenbaum concurred in the judgment. She agreed that DOT arbitrarily and capriciously required compliance with an open-skies agreement. But she disagreed that DOT acted arbitrarily and capriciously by focusing only on MEX, reasoning that approvals and terminations are meaningfully different.

Florida East Coast Railway v. Federal Railroad Administration

In the second case, perhaps the most famous railroad in administrative law joined with several other railroads and two trade organizations to challenge the Federal Railroad Administration’s 2024 “Crew Size Rule.” The rule generally requires railroads to operate with at least two crew members. The rule contains several exceptions, including for railroads that obtain “special approval” from the FRA. In an opinion written by Judge Rosenbaum and joined by Judge Kidd, the court denied the petitions for review. The railroads raised numerous arguments; I’ll focus on the major ones, including an interesting variation on the change-in-position doctrine.

First, several railroads unsuccessfully challenged the rule on statutory grounds. As amended, the Federal Railroad Safety Act of 1970 provides that “[t]he Secretary of Transportation, as necessary, shall prescribe regulations and issue orders for every area of railroad safety.” 49 U.S.C. § 20103(a). The court held that “as necessary” is “a grant of discretion about when to issue safety rules, not a stringent evidentiary bar.” The court required only that the rule be “reasonably related to the purposes of the enabling legislation.” The court distinguished the 1980 Benzene case because the statute mandated regulation of the most severe hazards first and the agency did not find that the rule was “reasonably necessary or appropriate.”

Second, the court rejected the railroads’ argument that the FRA changed its position without adequate explanation. This issue presents an interesting question about changes in position when a court has vacated an earlier agency action. By way of background, the FRA issued a notice of proposed rulemaking in 2016 that would have generally mandated two-person crews. In 2019, the Trump administration withdrew the 2016 notice. In 2021, the Ninth Circuit vacated the withdrawal. The Eleventh Circuit concluded that the vacated 2019 order was not an existing agency policy for purposes of the change-in-position doctrine. The Eleventh Circuit added that, in any event, the FRA reasonably explained its reassessment of existing research and its reliance on train length, a rise in human-caused errors, and the complexities of Positive Train Control.

Third, the court rejected the railroads’ argument that the FRA failed to consider the labor cost of keeping two-person crews when the railroads would have switched to one-person crews without the rule. The railroads relied on the Supreme Court’s decision about cost-benefit analysis under the Clean Air Act in Michigan v. EPA. The Eleventh Circuit distinguished Michigan on the ground that, unlike the Clean Air Act, the Railroad Safety Act does not require the FRA to find that its rulemaking would be “appropriate.” The Eleventh Circuit emphasized that Michigan gave agencies leeway in how to consider costs. And the Eleventh Circuit discounted the railroads’ predicted labor costs, in part because the FRA might grant “special approval” for one-person crews.

Finally, the court rejected the railroads’ challenge to the requirement that a train with a one-person crew have an “alerter.” An alerter monitors the engineer’s activity and escalates from alarms to a penalty brake if the engineer does not respond. Before the Crew Size Rule, the FRA required alerters only in trains traveling over 25 mph; the Crew Size Rule now requires them in any train with a one-person crew, regardless of speed. The railroads argued that this mandate was an arbitrary and capricious change in position. But the court concluded that the FRA acknowledged the change even though it said it “was not issuing conflicting statements” about alerters.

Judge Branch dissented. She would have held the rule arbitrary and capricious for two reasons. First, she concluded that the FRA did not adequately explain its change in position from the 2019 withdrawal order. She faulted the majority for treating the court decision as eliminating the 2019 order for purposes of change-in-position doctrine. She also reasoned that the FRA’s “research” in support of its change in position “did not draw any link between crew size and railroad accidents or concrete safety risks.” And she further reasoned that the FRA failed to connect train length, an increase in human-caused accidents, or uncertainty about Positive Train Control to the need for a second crew member.

Second, Judge Branch concluded that the FRA’s cost-benefit analysis was arbitrary and capricious. Even if a cost-benefit analysis was not required, the FRA performed one. And in Judge Branch’s view, the agency completely failed to consider the labor costs of mandatory two-person crews, even though it considered that evidence in its 2016 notice.

Center for Biological Diversity v. U.S. Environmental Protection Agency

In the third case, an environmental group challenged the EPA’s approval of the use of phosphogypsum, a radioactive substance, to build a road on private property. In a unanimous opinion written by Judge Marcus, the court held that the group had standing; the case was not moot; the EPA complied with its regulations; and the EPA’s analysis was not arbitrary and capricious. I’ll focus on the second and third issues.

As to mootness, the Eleventh Circuit held that there was an ongoing controversy even though the challenged portions of the road had already been built. The court explained that the case might have been moot if the group had sought only injunctive or declaratory relief. Because the group instead sought vacatur or remand, the dispute remained live.

On the merits, the court concluded that the EPA followed its own regulations. The environmental group relied on language in the preamble to the underlying rule. Specifically, the preamble stated that four particular scenarios involving the use of phosphogypsum were unsafe. But the court held that the preamble could not override the plain text of a regulation, which in this case did not prohibit the use of phosphogypsum in road construction.

Briefly: Two BIA Decisions and an En Banc Grant

In Pasqual-Andres v. U.S. Attorney General, a splintered panel granted a petition for review of a BIA decision denying a motion to reopen based on ineffective assistance of counsel. The court unanimously held that the petitioner sufficiently exhausted his administrative remedies. Judges Abudu and Grant held that the petitioner strictly complied with BIA precedent for ineffective-assistance claims. Judges Abudu and Newsom held that the petitioner substantially complied with BIA precedent and substantial compliance was enough. On that point, the panel joined the Second, Third, Fourth, Eighth, and Ninth Circuits and potentially split with the Fifth and Seventh Circuits, although the panel found the latter cases distinguishable.

In Ramdial v. U.S. Attorney General, the court unanimously denied a petition for review of another BIA decision. In an opinion by Judge Rosenbaum, the court held that the petitioner’s Florida conviction for robbery by sudden snatching was a “theft offense” under 8 U.S.C. § 1101(a)(43)(G), so the petitioner was ineligible for cancellation of removal under 8 U.S.C. § 1229b(a).

Finally, in Jones v. United States, the court granted rehearing en banc. In this case involving the Tennessee Valley Authority, the court will consider whether to overrule its precedent creating an exception to the waiver of sovereign immunity in the Suits in Admiralty Act. Judge Kidd, joined by Judge Rosenbaum, concurred at the panel stage to question that precedent. And Chief Judge Pryor wrote an opinion respecting the denial of initial hearing en banc that similarly questioned the precedent.