American Bus Association v. Peter Rogoff, et al

Filing

OPINION filed [1313036] (Pages: 17) for the Court by Judge Garland [10-5213, 10-5214]

USCA Case #10-5213

Document #1313036

Filed: 06/14/2011

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 23, 2010

Decided June 14, 2011

No. 10-5213
AMERICAN BUS ASSOCIATION,
APPELLEE
v.
PETER M. ROGOFF, ADMINISTRATOR, FEDERAL TRANSIT
ADMINISTRATION AND FEDERAL TRANSIT ADMINISTRATON,
APPELLANTS

Consolidated with 10-5214

Appeals from the United States District Court
for the District of Columbia
(No. 1:10-cv-00686)

Lewis Yelin, Attorney, U.S. Department of Justice, argued
the cause for appellants. With him on the briefs were Tony
West, Assistant Attorney General, and Scott R. McIntosh,
Attorney; Ronald C. Machen, U.S. Attorney; and R. Craig
Lawrence, Diane M. Sullivan, and Lauren J. Karam, Assistant
U.S. Attorneys.

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Richard P. Schweitzer argued the cause for appellee
American Bus Association. With him on the briefs was Craig
M. Cibak.
Dan R. Mastromarco argued the cause for appellee United
Motorcoach Association, Inc. With him on the brief was David
R. Burton.
Before: GARLAND and KAVANAUGH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: This appeal raises the following
question: Can Congress constitutionally permit a federallysubsidized transit system to take the residents of Seattle out to
the ball game? We conclude that Congress can, and we
therefore reject the plaintiffs’ challenge to a Washington
Senator’s effort to help her constituents get to Seattle Mariners
games.
I
The Federal Transit Act provides that, as a condition of
receiving federal funding, a public transportation system must
agree not to “provide charter bus transportation service outside
the urban area in which [the system] provides regularly
scheduled public transportation service.” 49 U.S.C. § 5323
(d)(1). This provision is known as the “Charter Rule.” The Act
further provides that, “[o]n receiving a complaint about a
violation of [such an agreement], the Secretary [of
Transportation] shall investigate and decide whether a violation
has occurred.” Id. § 5323(d)(2)(A). “If the Secretary decides
that a violation has occurred, the Secretary shall correct the
violation under terms of the agreement.” Id. § 5323(d)(2)(B).

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The Transit Act authorizes the Secretary of Transportation
to issue implementing regulations, id. § 5334(a)(11), which
authority the Secretary has delegated to the Federal Transit
Administration (FTA), 49 C.F.R. § 1.51(g). The FTA, in turn,
has promulgated regulations that allow interested parties to
request advisory opinions regarding the Charter Rule, as well as
orders to cease and desist from violations of that Rule. Id.
§ 604.17. The regulations also permit interested parties to file
complaints “regarding the provision of charter service by a
recipient” of federal financial assistance. Id. §§ 604.25, .27.
The FTA may then conduct an investigation, and if it determines
that a violation of the Charter Rule has occurred, it may (inter
alia) bar the offending transit system from receiving future
federal funding. Id. § 604.47(a)(1). A party dissatisfied with
the FTA’s determination may file a petition for judicial review
under the Administrative Procedure Act (APA), 5 U.S.C.
§§ 701-06. See 49 C.F.R. § 604.50(a).
Although the Transit Act’s Charter Rule dates to 1973,
Seattle’s public transportation system, King County Metro
(KCM), began providing special local bus service to Seattle
Mariners baseball games in the late 1990s and continued this
service for more than a decade. In 2008, the FTA issued a
regulation clarifying that the “charter service” barred by the
Transit Act includes irregularly scheduled bus service to special
events, including baseball games. 49 C.F.R. § 604.3(c)(2); see
73 Fed. Reg. 44,933 (2008). Because KCM’s special buses
qualified as “charter service” under the regulation, KCM could
no longer provide the buses without jeopardizing its federal
funding.1 In March 2008, KCM successfully petitioned the FTA

1

Although the Transit Act itself bars only “transportation service
outside the urban area in which [the transit system] provides regularly
scheduled public transportation service,” 49 U.S.C. § 5323(d)(1)
(emphasis added), the implementing regulations apply to all charter

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for an exception to the Charter Rule for the 2008 baseball
season. United Motor Coach Association (UMA) filed suit
challenging the exception, but that suit was mooted when the
2008 season ended and the exception expired. United Motor
Coach Ass’n v. Welbes, 614 F. Supp. 2d 1, 8-10 (D.D.C. 2009).
During the 2009 season, there was no charter bus service to
Mariners games: KCM did not get another exception, and no
private bus company was able to reach an agreement with the
Mariners. To avoid a similar situation for the following season,
Senator Patty Murray of Washington State sponsored an
amendment to the Consolidated Appropriations Act of 2010.
The Murray Amendment states:
None of the funds provided or limited under this Act
may be used to enforce regulations related to charter
bus service under part 604 of title 49, Code of Federal
Regulations, for any transit agency who during fiscal
year 2008 was both initially granted a 60-day period to
come into compliance with part 604, and then was
subsequently granted an exception from said part.
Pub. L. No. 111-117, § 172 (2009). The only public transit
agency that meets this definition is KCM. Thus, the
Amendment ensured that the FTA could not spend appropriated
funds to enforce the Charter Rule to bar KCM from providing
bus service to Mariners games in Fiscal Year (FY) 2010.
Moreover, although the Murray Amendment originally applied
only to FY 2010 funds, Congress has since enacted a series of

service, whether inside or outside the urban area, see 49 C.F.R. § 604;
73 Fed. Reg. 2327 (2008) (explaining agency rationale). Because no
party disputes (or even addresses) the authority for the regulations’
scope, we assume for purposes of this opinion that the Charter Rule
bars KCM’s special bus service.

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continuing appropriations acts that effectively retain the Murray
Amendment’s limitation through the end of FY 2011.2 In April
2010, KCM resumed operating its charter bus service for
weekend Mariners home games between the team’s stadium and
four park-and-ride locations.
In May 2010, two national trade associations representing
the private charter bus industry -- UMA and the American Bus
Association (ABA) -- filed complaints in district court charging
that the Murray Amendment violates the constitutional rights of
their members. They alleged that, by singling out private charter
bus operators in King County as the only such operators that
cannot enforce the Charter Rule against a competitor (KCM),
the Murray Amendment violates those operators’ First

2

The acts continue the funding from the Consolidated
Appropriations Act of 2010, in which the Murray Amendment
appeared. See Pub. L. No. 111-242, 124 Stat. 2607 (Sept. 30, 2010);
Pub. L. No. 111-290, 124 Stat. 3063 (Dec. 4, 2010); Pub. L. No.
111-317, 124 Stat. 3454 (Dec. 18, 2010); Pub. L. No. 111-322, 124
Stat. 3518 (Dec. 22, 2010); Pub. L. No. 112-4, 125 Stat. 6 (Mar. 2,
2011); Pub. L. No. 112-6, 125 Stat. 23 (Mar. 18, 2011); Pub. L. No.
112-10, 125 Stat. 38, Slip Copy § 1101(a)(6) (Apr. 15, 2011). The
first of these continuing appropriations acts, which extended funding
until December 3, 2010, stated that “[n]o appropriation or funds made
available . . . pursuant to [the act] shall be used to initiate or resume
any project or activity for which appropriations, funds, or other
authority were not available during fiscal year 2010.” Pub. L. No.
111-242, § 104. Each of the five subsequent acts extended the
application of that act (and of its limiting provision) for a short period
of time. The seventh and final continuing appropriations act continues
the 2010 funding through September 30, 2011. Pub. L. No. 112-10,
§ 1106. It contains limiting language similar to that in the first act. Id.
§ 1105.

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Amendment right to petition and Fifth Amendment right to
equal protection.
They also charged that the Murray
Amendment violates their members’ right to procedural due
process under the Fifth Amendment and is inconsistent with
separation of powers principles. After a hearing on the merits,
the district court held the Murray Amendment unconstitutional
on Petition Clause and equal protection grounds and ordered the
FTA to enforce the Charter Rule with respect to KCM. Am. Bus
Ass’n v. Rogoff, 717 F. Supp. 2d 73, 92 (D.D.C. 2010). The
court did not reach the due process or separation of powers
claims.
The FTA appealed, and a special panel of this court stayed
the district court’s decision pending appeal. See Order at 1, Am.
Bus Ass’n v. Rogoff, No. 10-5213 (D.C. Cir. July 13, 2010).
Because a constitutional challenge to a statute “presents a pure
question of law,” we consider the plaintiffs’ claims de novo.
Eldred v. Reno, 239 F.3d 372, 374 (D.C. Cir. 2001).3
II
The plaintiffs contend that the Murray Amendment violates
their Fifth Amendment right to equal protection4 by keeping
“only those private charter operators in the Seattle, Washington
geographic region from enjoying the protections afforded by the
3

For the reasons stated by the district court, we agree with the
parties that the plaintiffs have associational standing to assert the
constitutional claims of their private bus operator members. See Am.
Bus Ass’n, 717 F. Supp. 2d at 83-84.
4

See News Am. Publ’g, Inc. v. FCC, 844 F.2d 800, 804 (D.C. Cir.
1988) (explaining that “the Supreme Court has found [the] essential
mandate” of the Fourteenth Amendment’s Equal Protection Clause
“inherent in the Due Process Clause of the Fifth Amendment and
therefore applicable to the federal government”).

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Charter Rule.” ABA Compl. ¶ 71; see UMA Compl. ¶ 80.
Ordinarily, such economic regulation would be reviewed only
for minimum rationality. FCC v. Beach Commc’ns, Inc., 508
U.S. 307, 313 (1993); see infra Part III. Although stricter
scrutiny is required for classifications that “proceed[] along
suspect lines []or infringe fundamental constitutional rights,”
Beach Commc’ns, 508 U.S. at 313, those exceptions do not
apply here. Private bus companies do not represent a suspect
class, and their interest in providing service to baseball games
without competition from subsidized public buses is not a
fundamental interest.
Nonetheless, the plaintiffs contend and the district court
found that heightened scrutiny is required because the plaintiffs
allege an equal protection violation intertwined with a violation
of their First Amendment right to petition. In News America
Publishing, Inc. v. FCC, we concluded that legislation that
“burden[ed] a single publisher/broadcaster” had to be
scrutinized “under a test more stringent than the ‘minimum
rationality’ criterion typically used for conventional economic
legislation under equal protection analysis.” 844 F.2d 800, 802
(D.C. Cir. 1988). Applying that precedent, the district court first
determined that the Murray Amendment burdens the plaintiffs’
Petition Clause rights, and then applied a more stringent form of
equal protection scrutiny -- which it found the Murray
Amendment could not withstand.
At issue in News America was a statutory provision that
specifically barred the FCC from granting one -- and only one -publisher the extension of a waiver it needed to acquire
television broadcast licenses. 844 F.2d at 802-03. The
challenged provision thus prevented that publisher from
broadcasting on those stations, directly burdening its freedom of
speech. In this case, the plaintiffs contend that the Murray

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Amendment directly burdens their right to petition the
government. We disagree.
The First Amendment’s Petition Clause provides that
“Congress shall make no law . . . abridging . . . the right of the
people . . . to petition the Government for a redress of
grievances.” U.S. CONST. amend. I. “The right to petition is cut
from the same cloth as the other guarantees of [the First]
Amendment, and is an assurance of a particular freedom of
expression.” McDonald v. Smith, 472 U.S. 479, 482 (1985).
The right “extends to [petitioning] all departments of the
Government,” including administrative agencies and courts.
Cal. Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508,
510 (1972).
The plaintiffs maintain that the Murray Amendment
abridges their right to petition because it bars the FTA from
“receiv[ing] and adjudicat[ing] requests for advisory opinions,
requests for cease and desist orders, or complaints filed by
private operators who are harmed by the provision of charter
service” by KCM. ABA Compl. ¶ 59; see UMA Compl. ¶ 68.5
Although the government’s reading of the Amendment in the
district court was less than clear, it now maintains that the
Amendment only bars it from expending funds to enforce the
Charter Rule itself. The plaintiffs may still request advisory
5

The plaintiffs also suggest that the Murray Amendment denies
them access to the courts. That contention is plainly incorrect:
nothing in the Amendment refers to the expenditure of funds by the
courts, and this litigation itself demonstrates that such access has not
been denied. The plaintiffs are also wrong in their specific contention
that the Amendment effectively cuts off judicial review of statutory
claims because it bars the FTA from rendering a response that can be
appealed. Even if it were true that the Amendment bars the FTA from
responding, but see discussion infra, the APA authorizes courts to
“compel agency action unlawfully withheld,” 5 U.S.C. § 706(1).

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opinions and cease and desist orders and may still file
complaints. Gov’t Br. 15. (Indeed, in May 2010, UMA did
both. See Am. Bus Ass’n, 717 F. Supp. 2d at 81.) And the FTA
may still respond to such requests and complaints. Gov’t Brief
at 15-16; see Oral Arg. Recording at 3:10 - :45. The
government is plainly right that the Murray Amendment does
not bar the plaintiffs from making (or the agency from
receiving) such requests and filings. And while the Amendment
could arguably be read to prohibit the government from
expending funds to respond, the agency reasonably reads it as
permitting responses, and we see no reason to construe it
otherwise. See Wash. Legal Found. v. Henney, 202 F.3d 331,
336 (D.C. Cir. 2000) (finding it inappropriate to “rule on the
constitutionality of a hypothetical interpretation of a statute”
where the administering agency adopted a contrary
interpretation at oral argument).
The plaintiffs’ principal argument is that this is simply not
enough. They contend that “[a]llowing [plaintiffs] to file a
formal complaint, but not allowing the FTA to issue a favorable
ruling, does not satisfy [their] right to petition.” ABA Br. at 9.
The government agrees, of course, that the Murray Amendment
does not allow the FTA to issue the plaintiffs a favorable ruling.
For the duration of the appropriations limitation, the Murray
Amendment bars the agency from enforcing the Charter Rule
against KCM; accordingly, the FTA may not issue a cease and
desist order against, or cut off federal funds to, KCM. And
while the FTA may be able to issue an advisory opinion, the
only advice it can give is that the Amendment ties its hands. In
the plaintiffs’ view, this renders the Amendment
unconstitutional because “the Petition Clause guarantees
meaningful consideration of the petition, a decision, and the
possibility of a remedy.” ABA Br. at 9.

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We should pause for a moment and consider what the legal
landscape would look like if the plaintiffs were right that
“allowing [them] to file a formal complaint, but not allowing the
FTA to issue a favorable ruling, does not satisfy [their] right to
petition.” Id. at 9. If that were correct, then Congress could not
enact a statute barring EPA from issuing (or rescinding) a
greenhouse gas rule, because such a statute would deny
environmentalists (or industry) the right to petition the agency
for such a rule (or for its rescission). Closer to home, if the
plaintiffs were correct that the Murray Amendment violates their
petition right because it prevents them from successfully
petitioning the FTA to enforce the Charter Rule against KCM,
then the district court has violated KCM’s own petition right
because its order -- requiring the FTA to enforce the Charter
Rule -- prevents KCM from successfully petitioning the FTA
not to do so.
It should be no surprise, therefore, that precedent is against
the plaintiffs. Far from holding that the Petition Clause requires
the possibility of a remedy, this circuit held in We the People
Foundation, Inc. v. United States that the clause does not even
“guarantee[] a citizen’s right to receive a government response
to or official consideration of a petition for redress of
grievances.” 485 F.3d 140, 141 (D.C. Cir. 2007) (emphases
added). Similarly, in Minnesota State Board for Community
Colleges v. Knight, the Supreme Court held that, although the
First Amendment surely “protects the right of an individual to
speak freely, to advocate ideas, to associate with others, and to
petition his government for redress of grievances,” 465 U.S.
271, 286 (1984) (internal quotation marks omitted), “[n]othing
in the First Amendment . . . suggests that the rights to speak,
associate, and petition require government policymakers to
listen or respond to individuals’ communications on public
issues,” id. at 285 (citing Smith v. Ark. State Highway Emp.,
Local 1315, 441 U.S. 463, 464-65 (1979)).

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This court’s decision in Marijuana Policy Project v. United
States, 304 F.3d 82 (D.C. Cir. 2002), is also instructive. At
issue there was a congressional appropriations rider that denied
the District of Columbia authority to enact (including via the
ballot initiative process) any law reducing marijuana penalties.
Rejecting a claim that the rider violated the rights of plaintiffs
who wanted to speak and petition in favor of a medical
marijuana law, we determined that the rider “restricts no speech;
to the contrary, medical marijuana advocates remain free to
lobby, petition, or engage in other First Amendment-protected
activities to reduce marijuana penalties.” Id. at 85. All the rider
did, we said, was establish “limits on [D.C] legislative authority
-- as opposed to limits on legislative advocacy.” Id. And that
did not violate the First Amendment because the Amendment
“confers no right to legislate on a particular subject.” Id. at 85.
The rider, we noted, “silences no one; it merely shifts the focus
of debate . . . from the D.C. legislative process . . . to Congress.”
Id. at 86.
The parallels between Marijuana Policy Project and this
case are evident. The plaintiffs here remain free to speak and
petition in favor of barring KCM from continuing its special bus
service. All the Murray Amendment does is limit the FTA’s
authority to enforce such a bar. Accordingly, if the plaintiffs
want their efforts “to have legal effect, . . . [they] must be
directed to Congress rather than” the FTA. Id. at 85.
The plaintiffs insist that these precedents are inapposite
because they involved petitioners seeking discretionary policy
decisions, rather than a “complainant [who] was denied the
ability to seek redress for rights granted by a statute or rule.”
ABA Br. at 16 (emphasis added). “[U]nlike the petitioners in
Knight and We the People,” ABA maintains that it “does not
challenge policy decisions, but seeks to vindicate legal rights
guaranteed it and its members by statute.” ABA Br. at 18; see

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ABA Supp. Br. at 12-14 (distinguishing Marijuana Policy
Project on similar grounds).6 Because ABA’s members
assertedly have “rights” under the Transit Act and Charter Rule,
ABA Br. at 16, the plaintiffs contend that the relevant
precedents are not We The People, Knight, and Marijuana
Policy Project, but rather cases like Bill Johnson’s Restaurants,
Inc. v. NLRB and NAACP v. Button -- cases in which the
Supreme Court held that the government had unlawfully
restricted a complainant’s ability to seek remedies for rights
guaranteed it by law. See Bill Johnson’s, 461 U.S. 731, 742-43
(1983) (holding that the NLRB could not bar an employer from
pursuing a well-grounded lawsuit for damages under state law);
Button, 371 U.S. 415, 428-29 (1963) (holding that Virginia
could not bar the NAACP from encouraging and financing
desegregation suits intended to vindicate Fourteenth
Amendment rights).
There are two flaws in this argument.
First,
notwithstanding the plaintiffs’ insistence on doctrinal
distinctions between rights and remedies,7 the fact remains that,

6

The plaintiffs also distinguish We the People on the ground that
the government officials in that case chose not to respond to the
plaintiffs’ petitions; no law barred them from doing so. Although that
is factually correct with respect to We the People, it is not true for
Knight, which involved a Minnesota statute pursuant to which public
employers (state agencies) could “neither ‘meet and negotiate’ nor
‘meet and confer’ with any members of [certain] bargaining unit[s]
except through their exclusive representative.” 465 U.S. at 275.
7

In the government’s view, the plaintiffs have neither rights nor
remedies: “Because the Charter Rule does not apply to KCM during
the 2010 fiscal year,” the government argues, “plaintiffs have no rights
under the Charter Rule [to enforce] against KCM.” Gov’t Br. at 19
(internal quotation marks omitted). Cf. Miller v. French, 530 U.S.
327, 347 (2000) (“By establishing new standards for the enforcement

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for the duration of the appropriations limitation, the FTA cannot
enforce the Charter Rule against KCM. Hence, far from
demanding something that they have a right to expect from the
agency, they are making a request that the FTA lacks even the
discretion to grant.
Second, and more important, in Bill Johnson’s and Button
the government interfered with the plaintiffs’ ability to express
their views to a decisionmaker -- in both cases, to a court. Here,
by contrast, Congress has instead interfered with the
decisionmaker’s ability to grant the remedy the plaintiffs seek.
No case holds that this kind of interference -- whether with
rights or remedies -- abridges the Petition Clause. Cf.
Marijuana Policy, 304 F.3d at 85 (“The [plaintiff] cites no case,
nor are we aware of one, establishing that limits on legislative
authority -- as opposed to limits on legislative advocacy -violate the First Amendment.”).
It is true that the plaintiffs cannot persuade the FTA to
enforce the Charter Rule against KCM. But that is not because
Congress has prohibited them from “seeking redress” from the
agency; it is because Congress has deprived the agency of the
funds necessary to grant the redress the plaintiffs seek. It is
likewise true that the plaintiffs cannot persuade a court to
overturn the FTA’s refusal to enforce the Rule on the ground
that it is arbitrary or contrary to law. See APA, 5 U.S.C. §
706(2)(A). But that is not because Congress has barred the
plaintiffs from arguing their case; it is because an agency does
not act arbitrarily or unlawfully when it follows the mandate of
Congress.

of prospective relief, . . . Congress has altered the relevant underlying
law.”). In light of the discussion that follows, we need not resolve
that issue.

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At bottom, the obstacle that blocks the plaintiffs’ ability to
invoke the Charter Rule against KCM is Congress’ retraction of
the only remedy it had previously authorized for a transit
system’s violation of the Charter Rule: enforcement by agency
action. See 49 U.S.C. § 5323(d)(2)(B), (C); see also Am. Bus
Ass’n, 717 F. Supp. 2d at 86 (noting that the Transit Act “does
not create a private right of action” for parties aggrieved by its
violation (internal quotation marks omitted)). There is nothing
in the Petition Clause, however, that bars Congress from
changing its mind about whether or how its statutes may be
enforced. If there is a constitutional problem with that retraction
-- a question we pursue further in Part III -- it does not sound in
the First Amendment.
III
Having concluded that the Murray Amendment does not
burden the plaintiffs’ First Amendment right to petition, the
remainder of their constitutional challenges are readily resolved.
As we noted in Part II, in the absence of a suspect class or
fundamental right, or an intertwining with the First Amendment,
the plaintiffs’ charge that the Murray Amendment violates equal
protection by singling out KCM’s competitors for special
treatment is subject only to rational-basis review. See Beach
Commc’ns, 508 U.S. at 313; see also News Am., 844 F.2d at 802.
Under that standard, we must uphold the Amendment as long as
there is a “rational relationship between the disparity of
treatment and some legitimate governmental purpose.” Heller
v. Doe, 509 U.S. 312, 320 (1993). We find such a relationship
here.
KCM successfully provided charter service to Mariners
games for more than ten years. In 2009, when the Charter Rule
barred it from continuing those services, no charter service was

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available to Mariners fans. According to Senator Murray, the
Charter Rule “resulted in several specific problems in the Seattle
region including private charter operators that were unable to
accommodate handicapped fans, drastically increased fees for
service, inconvenient and delayed staging, and increased
congestion.” Press Release, Sen. Patty Murray, Murray
Provision Will Restore Metro Bus Service to UW, Mariners,
Seahawks Games (Dec. 9, 2009) (J.A. 46). Because the
Amendment is rationally related to the legitimate governmental
goals of accommodating handicapped fans, restoring more
affordable service, and reducing traffic congestion on game
days, it readily passes muster under the rational-basis test.
The critique of this rationale, which won the day for the
plaintiffs under the heightened scrutiny applied by the district
court, cannot prevail when the rational-basis test is applied. It
may be true that the government’s interest in affording
convenient transportation to baseball games is not compelling.
But cf. Flood v. Kuhn, 407 U.S. 258, 264 (1972) (“‘Baseball’s
status in the life of the nation is so pervasive that it would not
strain credulity to say the Court can take judicial notice that
baseball is everybody’s business.’” (quoting Flood v. Kuhn, 309
F. Supp. 793, 797 (S.D.N.Y.1970))). But rational-basis review
requires only a legitimate interest. It is certainly true that the
rationale set forth in the preceding paragraph was not expressly
stated by Congress, and instead finds its expression in a press
release issued by Senator Murray. Under rational-basis scrutiny,
however, “a legislature . . . need not ‘actually articulate at any
time the purpose or rationale supporting its classification.’”
Heller, 509 U.S. at 320 (quoting Nordlinger v. Hahn, 505 U.S.
1, 15 (1992)). Rather, a statute “must be upheld against equal
protection challenge if there is any reasonably conceivable state
of facts that could provide a rational basis for the classification.”
Id. (quoting Beach Commc’ns, 508 U.S. at 313).

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Of course, there may well be another side to the story: the
plaintiffs contend that “there are privately-owned charter
operators willing and able to provide affordable, efficient, and
accessible service to Mariners games.” ABA Br. at. 7. But
rational-basis review “is not a license for courts to judge the
wisdom, fairness, or logic of legislative choices.” Beach
Commc’ns, 508 U.S. at 313. The plaintiffs may also be right
that the Murray Amendment is both underinclusive because
baseball fans in other cities might benefit from a similar
exemption, and overinclusive because the exemption could be
limited to cases in which private charter service is proven to be
inadequate or unaffordable. See Am. Bus Ass’n, 717 F. Supp. 2d
at 91. But “courts are compelled under rational-basis review to
accept a legislature’s generalizations even when there is an
imperfect fit between means and ends.” Heller, 509 U.S. at 321.
Indeed, neither the district court nor the plaintiffs dispute
this analysis. The court did not disagree that the Murray
Amendment would “withstand” rational-basis scrutiny, although
in its estimation only “barely” so. 717 F. Supp. 2d at 92. And
the plaintiffs’ appellate briefs do not argue that they can win if
such minimum scrutiny is applied.
In addition to their Petition Clause and equal protection
claims, the plaintiffs also charge that the Murray Amendment
violates both their Fifth Amendment procedural due process
rights and separation of powers principles. The district court did
not reach those arguments, and the plaintiffs give them short
shrift in their appellate briefs. And for good reason. Even if the
plaintiffs were correct that the Charter Rule gave them a
property interest in operating free from federally-subsidized
competition, the Supreme Court has made clear that the
legislative process provides all the process that is
constitutionally due before Congress may enact a provision like
the Murray Amendment. See Atkins v. Parker, 472 U.S. 115,

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USCA Case #10-5213

Document #1313036

Filed: 06/14/2011

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128-30 (1985); Bi-Metallic Inv. Co. v. State Bd. of Equalization,
239 U.S. 441, 445-46 (1915); Decatur Liquors, Inc. v. District
of Columbia, 478 F.3d 360, 363 (D.C. Cir. 2007). As for the
claim that Congress transgressed the separation of powers by
stripping the FTA of its authority to enforce the Charter Rule
against KCM, there is no transgression when Congress does
nothing more than prospectively withdraw an enforcement
authority it had previously conferred. See Miller v. French, 530
U.S. 327, 347 (2000); Robertson v. Seattle Audubon Soc., 503
U.S. 429, 437-41 (1992). Accordingly, the plaintiffs’ subsidiary
arguments have no greater purchase than their principal claims.
IV
For the foregoing reasons, we conclude that the Murray
Amendment is not unconstitutional. If the plaintiffs wish to
prevent KCM from taking Mariners fans out to the ball game,
they will have to direct their petitions to Congress. The
judgment of the district court is

Reversed.

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