Karen Kidd Aug. 7, 2016, 4:57pm


WASHINGTON (Legal Newsline) – The D.C. Circuit's recent rejection of a National Federation of the Blind's (NFB) challenge to a U.S. Department of Transportation rule on airline ticketing kiosks is an opportunity lost over a technicality, two D.C.-area attorneys said during a recent interview.

"The circuit court agreed that the district court hadn't been the correct court," Amy Xu, an associate with Sutherland Asbill & Brennan, said during a Legal Newsline telephone interview.

To make matters worse, the U.S. Court of Appeals for the D.C. Circuit also pointed out in its sharply worded opinion handed down late last month that the NFB failed to file its case with them within the deadline.

"So the court really didn't get to the issue about the DOT final rule at all," Xu said.

Which likely means the case is over, Sutherland Asbill & Brennan Partner Lewis Wiener said during the same interview.

"It's too late," Wiener said. "I guess they could try to appeal it to the Supreme Court, but that they missed the filing deadline is not a basis for an appeal. You only get one bite of the apple."

Failing such a Hail Mary appeal, so ends the NFB's case over a DOT rule that does not require airlines to make all airport ticketing kiosks accessible to the visually impaired. The federation maintained the DOT's 25 percent threshold and the three-year grace period allowed the airlines in its final rule is a violation of the Air Carrier Access Act of 1986, according to court records.

The Air Carrier Access Act prohibits airlines from discriminating on the basis of disability and provides the DOT with its authority to create regulations to prevent such discrimination. In 2011, the DOT issued a supplemental notice of proposed rule making that included a provision that future automated ticketing kiosks be accessible to the blind.

That rule was promulgated Sept. 26, 2011, and would have taken effect 60 days later but the DOT sought comment on a less than 100-percent accessible kiosk requirement, as well as on implementation timing. After receiving comments from the airlines and disabled passenger advocacy groups, the DOT altered the rule to require airlines purchase blind-accessible kiosks at a threshold of 25 percent.

Wiener likened this to seating availability for the handicapped on buses and trains, where not all seating need be handicapped accessible but that such seating is available to all with the handicapped receiving priority in certain seats. Under the 25 percent threshold, nonhandicapped passengers could use the handicapped accessible kiosks, but with the understanding that handicapped passengers receive priority to those kiosks. That does its part to keep lines moving, Wiener said.

And that's important, and raises complications, not only in airports but in the ever-changing U.S. economy in which consumers are expected to do more work than ever before, Wiener said. Consumers use banking ATMs instead of always visiting a bank teller and the airport kiosks themselves take the place of airline employees who once did all of that work, Wiener said.

"We do all of that now," Wiener said. "More levels of our economy are requiring consumers to do that work. Our economy is becoming more and more labor intensive for consumers."

Which is making it harder for the handicapped, including the visually impaired, who find barriers to doing that work, Wiener said, and in turn, is sparking litigation and worries about litigation. Realtors and other business owners are at greater risk of lawsuits over their websites' accessibility - or lack thereof - to the handicapped, including the visually impaired.

Businesses especially are finding compliance with handicapped accessibility laws is very costly and some are being targeted by serial litigators over compliance issues. In Sherman, Texas, a disabled veteran is suing designers and contractors for allegedly failing to uphold Americans with Disabilities Act regulations that he says amounts to violations accessibility requirement provision of the Fair Housing Act and Title VIII of the Civil Rights Act.

The DOT's final rule about airline carriers and their ticketing kiosks went into effect Dec. 12, 2013. The final rule also provided a grace period for the airlines to not have to begin buying accessible ticketing kiosks until three years after that effective date.

The NFB then began its case against the DOT's final rule, but immediately ran into timing issues. The NFB filed its complaint in district court the following Jan. 22, which was 71 days after DOT issued the final rule, seeking declaratory and injunctive relief under the Administrative Procedure Act. That filing's timing passed the 60-day filing deadline.

In any case, the district court ruled that it lacked jurisdiction because the DOT's final rule is an order covered under federal statutes, which places it under the jurisdiction of the court of appeals. Rather than dismiss the case, the district court transferred the NFB's complaint to the D.C. Circuit Court of Appeals, seeking a determination of whether the untimely filing could be excused.

The appeals court ruled it could not be excused and that the reasons for the misfiling were inexcusable because filing deadlines are clearly spelled out in statute and previous legal precedent.

"NFB therefore cannot cry ignorance of the proper forum in seeking to excuse their untimely challenge to the final rule," the appeals court ruling said. "The NFB fails to meet our precise standard for reasonable grounds. As our sister circuits have adeptly explained, a delay caused by filing a petition or complaint in the wrong court by itself is not a reasonable ground for failing to meet the statutory 60-day deadline."

With that, the appeals court dismissed the NFB's petition and denied its request for a writ of mandamus, which leaves everyone to wonder what the appeals court may have decided had it actually gotten to the merits of the case.

"The simple answer is, 'I don't know,'" Wiener said.

Organizations in this Story

U.S. Department of Transportation
1200 New Jersey Ave SE
Washington, DC 20590

Sutherland Asbill & Brennan LLP
1001 Fannin St
Houston, TX 77002

U.S. Court of Appeals for the District of Columbia Circuit
333 Constitution Ave NW
Washington, DC 20001

National Federation for the Blind
200 East Wells Street
Baltimore, MD 21230

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