Does the ever-decreasing size of airline seating make you fed up? It certainly seems to do so to Judge Millet, who penned this opening paragraph in Flyers Rights Education Fund v. F.A.A., – F.3d – (2017 WL 3202638) (D.C. Cir. 2017):

This is the Case of the Incredible Shrinking Airline Seat. As many have no doubt noticed, aircraft seats and the spacing between them have been getting smaller and smaller, while American passengers have been growing in size. Paul Hudson and the Flyers Rights group became concerned that this sharp contraction in passenger seating space was endangering the safety, health, and comfort of airline passengers. So they petitioned the Federal Aviation Administration to promulgate rules governing size limitations for aircraft seats to ensure, among other things, that passengers can safely and quickly evacuate a plane in an emergency. The Administration denied the petition, asserting that seat spacing did not affect the safety or speed of passenger evacuations. To support that conclusion, the Administration pointed to (at best) off-point studies and undisclosed tests using unknown parameters. That type of vaporous record will not do — the Administrative Procedure Act requires reasoned decision making grounded in actual evidence. Accordingly, we grant the petition for review in part and remand to the Administration.

The Federal Aviation Association (FAA) is charged by statute with “promot[ing] safe flight of civil aircraft in air commerce by prescribing * * * minimum standards required in the interest of safety for * * * the design, material, construction, quality of work, and performance of aircraft,” as well as “regulations and minimum safety standards for other practices, methods, and procedure[s] * * * necessary for safety in air commerce” and is required to consider carriers’ duty to provide the “highest possible degree of safety.”

Pursuant to the Federal Aviation Act, the group Flyers Rights petitioned the FAA for a rulemaking on minimum seat standards. The group noted that in recent history the average airline seat has decreased from 35 to 31 inches in “seat pitch” (the measure between a point on the seat and the same point on the seat in front of it) and from 18.5 to 17 inches in seat width, while the average American has steadily increased in weight and girth over the last 50 years. The group asserted these changes were unsafe, both in limiting passengers’ ability to evacuate the plane in an emergency as well as the seats’ role in causing deep vein thrombosis.

In rejecting the petition, the FAA made a series of representations as to the safety of smaller modern seats, without citing any studies or tests to corroborate those statements. After follow-up, the FAA cited to a set of its own studies on aircraft evacuations — none of which it disclosed to the group and none of which studied reduced seat sizes.

Reviewing the FAA’s denial, the court held that the FAA had acted arbitrarily when it “failed to provide a plausible evidentiary basis for concluding that decreased seat sizes combined with increased passenger sizes have no effect on emergency egress.” The court firmly rejected the FAA’s assertion that “seat dimensions are categorically unimportant to emergency egress.” The court responded in part that:

The Administration’s rationale also blinks reality. As a matter of basic physics, at some point seat and passenger dimensions would become so squeezed as to impede the ability of passengers to extricate themselves from their seats and get over to an aisle. The question is not whether seat dimensions matter, but when.

The court was particularly critical of the FAA’s assertions that it was in possession of tests showing decreased seat sizes were safe and had relied upon those tests in rejecting the petition, but did not include those tests in the record (even under seal) because they were “proprietary.” The court did not agree that such hidden tests were adequate support for the agency’s decision, stating:

[T]hat is not how judicial review works. We cannot affirm the sufficiency of what we cannot see. “[A]n agency decision based on ‘reliable data reposing in the [agency’s] files’” but hidden from judicial view “simply cannot withstand scrutiny.”

In light of the FAA’s failure to present an adequate record for judicial review, the court remanded to the agency to “adequately address the petition and the emergency egress concerns it raises.” Accordingly, the FAA will have another shot at explaining whether ever-smaller airline seats are safe for evacuations.