United States Court of Appeals
             for the Fifth Circuit                            United States Court of Appeals
                                                                       Fifth Circuit

                            ____________                             FILED
                                                                 July 29, 2024
                              No. 24-60231                      Lyle W. Cayce
                            ____________                             Clerk

Airlines for America; Alaska Airlines, Incorporated;
American Airlines, Incorporated; Delta Air Lines,
Incorporated; Hawaiian Airlines, Incorporated;
Jetblue Airways Corporation; United Airlines,
Incorporated; National Air Carrier Association;
International Air Transport Association,

                                                                   Petitioners,

                                   versus

Department of Transportation,

                                                                  Respondent.
               ______________________________

 Appeal from the Department of Transportation, National Transportation
                            Safety Board
                   Agency No. 

              ______________________________

Before Haynes, Willett, and Duncan, Circuit Judges.
Stuart Kyle Duncan, Circuit Judge:
      Several airlines and airline associations seek a stay pending review of
a recent Department of Transportation (“DOT”) Rule that regulates how
airlines disclose fees to consumers during the booking process. Finding the
                                       No. 24-60231


Rule likely exceeds DOT’s authority and will irreparably harm airlines, we
GRANT the requested stay and EXPEDITE the petition for review.*
                                             I.
        On April 30, 2024, DOT issued a Rule regulating how airlines
communicate certain fees to customers during the booking process. See
Enhancing Transparency of Airline Ancillary Service Fees, 

(Apr. 30, 2024) [“Rule”]. The Rule dictates when and how airlines must
disclose “ancillary service fees”—generally speaking, baggage or change
fees.1 The goal is to streamline booking and protect consumers from surprise
charges. See 

. DOT estimates the Rule will create net societal
benefits between $30.3 million and $253.5 million and save consumers $543
million per year. 

,668–69. The Rule took effect July 1, 2024. Airlines
must provide fee data to third-party ticket agents by October 30, 2024, and
their own platforms must comply with the Rule by April 30, 2025. 

.
            On May 31, 2024, various airlines and airline associations
(“Petitioners”) asked DOT to stay the Rule while it sought review. When
DOT declined, Petitioners challenged the Rule in our court and sought a stay
pending review under 

. Petitioners argue the Rule (1) exceeds
DOT’s authority; (2) is arbitrary and capricious; and (3) wrongly bypassed
notice and comment.

        _____________________
        *
          Judge Haynes would grant expedited appeal. With respect to the request for
a stay of the Rule, as a member of the motions panel, she would grant a temporary
administrative stay for a brief period of time and defer the question of the stay pending
appeal to the oral argument merits panel which would receive this case.
        1
           See 

 (defining ancillary services as “(1) transporting a first checked
bag, second checked bag, and carry-on bag; and (2) changing or canceling a reservation”);
see also 

 (codifying requirements).




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                                       No. 24-60231


                                            II.
       We evaluate a stay request by considering:
       (1) [W]hether the stay applicant has made a strong showing
       that he is likely to succeed on the merits; (2) whether the
       applicant will be irreparably injured absent a stay; (3) whether
       issuance of the stay will substantially injure the other parties
       interested in the proceeding; and (4) where the public interest
       lies.
Nken v. Holder, 

 (2009). Factors one and two are the “most
critical.” 

                                             A.
       On the first factor, Petitioners make a strong showing that the Rule
exceeds DOT’s authority.2
       The relevant statute authorizes the DOT Secretary to:
       [I]nvestigate and decide whether an air carrier . . . has been or
       is engaged in an unfair or deceptive practice or an unfair
       method of competition in . . . the sale of air transportation.

(a). If the Secretary “finds” the carrier has done so, “after
notice and an opportunity for a hearing,” then “the Secretary shall order the
air carrier . . . to stop the practice or method.” 

 By its terms, then, the
statute authorizes DOT to adjudicate whether certain practices are “unfair
or deceptive” and, if so, to order the carrier to “stop” them.
       The Rule goes far beyond adjudication, however. It mandates, often
in great detail, a host of disclosure practices. See generally 89 Fed. Reg. at
34,621 (summarizing provisions). For instance, fees must be disclosed at a
specific stage in a customer’s “itinerary search process”—“the first point
       _____________________
       2
           So, we need not address Petitioners’ other challenges to the Rule.




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                                        No. 24-60231


where a fare and schedule is provided in connection with a specific flight
itinerary.” Ibid. Fees may be displayed “using pop-ups, expandable text, or
other means,” but not “through a hyperlink.” Ibid. Some disclosures must
convey specified content.3 Sometimes that content is prescribed verbatim.4
        As Petitioners correctly put it, “[t]he Rule doesn’t just prohibit—it
prescribes.” And it does so outside the adjudicatory process set out by
§ 41712(a). That is, the Secretary does not purport to “find,” following
“notice and . . . a hearing,” that a carrier’s online sale “practice” is “unfair
or deceptive” and then order a carrier to “stop” it. See 

(a).
Rather, the Rule essentially enacts a code of online disclosure practices. That
is not authorized by the statute. See, e.g., Clean Water Action v. United States
Env’t Prot. Agency, 

, 313 n.10 (5th Cir. 2019) (“[A]gencies, as
mere creatures of statute, must point to explicit Congressional authority
justifying their decisions.”).
        If Congress wanted to authorize this kind of legislative rulemaking, it
could       have      drawn        on      language        from       other       provisions.
Cf. 

(b)(2) (authorizing Federal Aviation Administration to
“prescribe air traffic regulations on the flight of aircraft”); 

 § 44903(b)
(authorizing Transportation Security Administration to “prescribe regulations
to protect passengers and property . . . against an act of criminal violence or

        _____________________
        3
          See, e.g., ibid. (requiring disclosures in response to a “passenger-specific itinerary
search” to incorporate “frequent flyer,” “military,” and “credit card” status); ibid.
(disclosures must include “first checked, second checked, or carry-on baggage fees” absent
special circumstances).
        4
          See id. at 34,676 (mandating “the following notice on any page or step of the
booking process” where customers can pay for a seat). This is the required notice: “A seat
is included in your fare. You are not required to purchase a seat assignment to travel. If you
decide to purchase a ticket and do not select a seat prior to purchase, a seat will be provided
to you without additional charge when you travel.” Ibid.




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                                      No. 24-60231


aircraft piracy”) (emphases added). But such language is found nowhere in
§ 41712(a), indicating Congress did not confer that authority on DOT here.
See Polselli v. IRS, 

 (2023) (“We assume that Congress acts
intentionally and purposely when it includes particular language in one
section of a statute but omits it in another section of the same Act.”) (cleaned
up).
        DOT’s defense of the Rule fails to grapple with § 41712(a)’s text.
Instead, the agency points to a general provision authorizing the Secretary to
“take action [he] . . . considers necessary to carry out” his duties, “including
conducting investigations, prescribing regulations, standards, and procedures,
and issuing orders.” 

(a) (emphasis added). That does not
help DOT’s argument. As we have held before, “[t]he grant of authority to
promulgate ‘necessary’ regulations cannot expand the scope of the
provisions the agency is tasked with ‘carrying out.’” Gulf Fishermens Ass’n
v. Nat’l Marine Fisheries Serv., 

, 465 (5th Cir. 2020). Reading
the catch-all authority in § 40113(a) to justify the Rule would obliterate the
directly applicable textual limits spelled out in § 41712(a).5
        DOT then pivots to the agency’s “history” of promulgating
regulations under § 41712, pointing to a handful of rules issued since 1982.
That argument also fails. The Supreme Court has rejected the theory that
agency practice can defeat a statute’s text by “adverse possession.” Rapanos

        _____________________
        5
          DOT also points to 

(a), which imposes civil penalties for
violating a laundry list of provisions across 13 chapters, including § 41712, and also for
violating “a regulation prescribed” under any of those provisions. See 

(a)(1)(A), (B). But § 46301(a)—which references numerous provisions besides
§ 41712—says nothing about whether § 41712(a) in particular authorizes legislative
rulemaking. And the fact that § 46301(a) references provisions that expressly authorize
such rulemaking (see, e.g., 

(b) and 44903(b)) only underscores that
§ 41712(a) does not.




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                                       No. 24-60231


v. United States, 

 (2006); see also Career Colls. & Sch. of Tex.
v. United States Dep’t of Educ., 

, 241 (5th Cir. 2024)
(“[Agencies’] near-exclusive reliance on agency custom is irreconcilable
with the judicial obligation to interpret the statute that Congress actually
enacted.”).6
        Finally, DOT relies on United Air Lines, Inc. v. C.A.B., 

(7th Cir. 1985), where a sister circuit construed the precursors to §§ 41712(a)
and 40113(a) to confer legislative rulemaking power. Id. at 1111–12. We find
C.A.B. unpersuasive for several reasons. First, while recognizing that
§ 41712(a) “creates an adjudicative procedure,” C.A.B. failed to draw the
natural inference, well established in our canons of statutory construction,7
that the section therefore excludes legislative rulemaking. Id. at 1111. Second,
C.A.B. reasoned that the agency’s “history” of issuing such regulations
somehow confirmed its authority to do so. Id. at 1111–12. We have rejected
that reasoning. See Career Colleges, 98 F.4th at 241. Finally, C.A.B. relied on
legislative history to prove that Congress expected DOT to continue its
predecessor’s practice of issuing legislative rules. 

 (citing
H.R. Rep. No. 793, 98th Cong., 2d Sess. 4 (1984)). “But legislative history is
not the law,” Azar v. Allina Health Servs., 

 (2019) (quoting
Epic Sys. Corp. v. Lewis, 

 (2018)), nor can it “muddy clear

        _____________________
        6
          We also disagree with DOT that Congress “ratified the Department’s authority
to prescribe practices under § 41712.” In the examples DOT cites, Congress did not
address the Secretary’s authority to promulgate the Rule. See H.R. 3935, 118th Cong. tit.
V, subtitle A, § 513(a), (b)(3). That is why DOT’s brief claims only that “Congress . . . did
not question . . . the Department’s authority to issue [the Rule].” Red Br. at 8 (emphasis
added). But “congressional silence lacks persuasive significance . . . particularly where
administrative regulations are inconsistent with the controlling statute.” Brown v. Gardner,

 (1994) (citations omitted).
        7
         See Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts
107 (2012) (“The expression of one thing implies the exclusion of others”).




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                                  No. 24-60231


statutory language.” Milner v. Dep’t of Navy, 

, 572 (2011); see
also United States v. Nazerzadeh, 

 (5th Cir. 2023), cert. denied,

 (2023) (where a text is unambiguous, “we are not permitted
to look to the legislative history”) (quoting Goswami v. Am. Collections Enter.,
Inc., 

 (5th Cir. 2004)).
       In sum, Petitioners have made a strong showing that the Rule exceeds
the agency’s authority under 

(a).
                                       B.
       Petitioners meet the remaining Nken factors.
       Petitioners have submitted ample evidence detailing the irreparable
harm they will suffer absent a stay. For instance, they will have to expend
significant resources reengineering their websites to comply with the Rule.
See Rest. L. Ctr. v. United States Dep’t of Lab., 

 (5th Cir.
2023) (“[T]he nonrecoverable costs of complying with a putatively invalid
regulation typically constitute irreparable harm.”); Career Colleges, 98 F.4th
at 236 (“[a]lleged compliance costs need only be more than de minimis”)
(quotation omitted). DOT suggests Petitioners have not shown that these
harms are irreparable, but “complying with a regulation later held invalid
almost always produces the irreparable harm of nonrecoverable compliance
costs.” Texas v. United States Env’t Prot. Agency, 

 (5th Cir.
2016) (quoting Thunder Basin Coal Co. v. Reich, 

, 220–21 (1994)
(Scalia, J., concurring in part and in the judgment)). And there does not
appear to be any way Petitioners could recover their compliance costs.
       “The balance-of-harms and public-interest factors merge when the
government opposes an injunction.” Career Colleges, 98 F.4th at 254.
Petitioners have shown they are likely to suffer significant and irreparable
harm from the Rule. That Rule likely goes well beyond the authority
Congress has given DOT, and “there is generally no public interest in the




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                                No. 24-60231


perpetuation of unlawful agency action.” State v. Biden, 

, 560
(5th Cir. 2021) (quoting League of Women Voters of U.S. v. Newby, 

 (D.C. Cir. 2016)).
                                    III.
       Petitioners’ motion for stay of the Rule pending review is
GRANTED and the petition is EXPEDITED to the next available oral
argument panel.




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