D.C. Circuit on Inaccessible Chinatown Buses

Yesterday, the D.C. Circuit issued an opinion in Peter Pan Bus Lines, Inc. v. Federal Motor Carrier Safety Administration. The case involved a challenge by Peter Pan Bus Lines to the FMCSA's decision to certify Fung Wah Transportation to operate bus service between Boston and New York. Peter Pan had argued that the agency should not grant Fung Wah's application for certification, because "Fung Wah was unwilling or unable to comply with the requirements of the regulations DOT has promulgated under the Americans With Disabilities Act (ADA)." Without disputing the factual premise, the FMCSA certified Fung Wah anyway; the agency concluded that it had no power to consider an applicant's ADA compliance in a certification proceeding.

In an opinion by Judge Henderson, the D.C. Circuit vacated the agency's decision. The court concluded that the FMCSA was wrong to conclude that the relevant statute unambigously barred the agency from considering ADA compliance. Instead, the court found the statute ambiguous and remanded to the agency to permit it to interpret the statute in light of the ambiguity in the first instance.

Judge Tatel issued a separate concurrence, which strongly hinted that he thinks the agency is required to consider ADA compliance:

I write separately to set forth my serious doubts regarding the reasonableness of FMCSA's principal justification for declining to review bus company ADA compliance during the registration process.

In its brief, FMCSA explains that denying Fung Wah the registration it seeks "hardly is in the public interest even if Fung Wah has serious ADA-problems that must be rectified." Resp't's Br. 32. Amplifying this point at oral argument, FMCSA counsel told us that even if an applicant carrier declared its intention to provide low-cost service by operating buses without wheel-chair lifts, the agency would register that company, leaving it to the Department of Justice to investigate. Oral Arg. at 30:49. FMCSA's position is puzzling given that Congress, having enacted the statute to keep motor carriers off the road until they demonstrate they are willing and able to follow the law, must have understood that this requirement would lead to temporary sacrifices of competition. FMCSA's argument, therefore, must rest on the proposition that, unlike the interests protected by "the applicable regulations of the Secretary," the interests of the disabled are so unimportant that they must yield to the interest in competition. If the "applicable regulations of the Secretary" consisted only of safety regulations, then perhaps FMCSA's interpretation would represent a plausible understanding of congressional intent. But the regulations promulgated under Part B--which FMCSA concedes it must consider--go beyond safety to address, among other things, financial responsibility, 49 C.F.R. § 387, race discrimination, 49 C.F.R. § 374.101, .105, and less weighty interests such as noise emissions, 49 C.F.R §§ 325.1-325.93, radar detectors, 49 C.F.R § 392.71, and records storage, 49 C.F.R § 379.5. Absent a satisfactory explanation for why the interests protected by the Americans with Disabilities Act are less important than the interests protected by these other regulations, I doubt very much that FMCSA's justification could survive Chevron step two.