“Private bus companies do not represent a suspect class”

Today, in American Bus Association v. Rogoff, the U.S. Court of Appeals for the D.C. Circuit answers the timeless question: ” Can Congress constitutionally permit a federally subsidized transit system to take the residents of Seattle out to
the ball game?” The court concludes Congress can and so, in an opinion by Judge Garland, it rejects “the plaintiffs’ challenge to a Washington Senator’s effort to help her constituents get to Seattle Mariners games.”

At issue in the case is the so-called “Murray Amendment,” an amendment to the Consolidated Appropriations Act of 2010 sponsored by Sen. Patty Murray (D-WA) that barred the Federal Transit Administration from expending funds to enforce federal rules barring federally subsidized public transportation systems from offering charter bus service outside of their regular service area against bus systems that meet specific criteria. Curiously enough, only one public transit system in the country, Seattle’s King County Metro, qualified, prompting other public transit systems and bus companies to file suit.

The plaintiffs allege the Murray Amendment violates their First Amendment right to petition the government and equal protection under the Fifth Amendment. Neither argument was persuasive. The equal protection is rather easy to dispose of under rational basis scrutiny. Bus companies, after all, are not a “suspect class.” Related due process arguments raised by plaintiffs were no more successful.

The plaintiffs’ right to petition argument is more interesting, and occupies more of the court’s opinion, but was no more successful. In effect, the plaintiffs argue that it is unconstitutional for Congress to bar the expenditure of funds to enforce a statutory provision where the effect is to deprive others of the ability to file petitions or complaints with an agency seeking enforcement. The implications of such an argument would be quite sweeping. As Judge Garland explained:

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. . . .

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. . . .

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.

The bus companies opted to swing for the fences with their constitutional claims, but they struck out.

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