In October, I posted about the Fifth Circuit’s curious grant of rehearing en banc in a challenge to the Department of Transportation’s 2024 Rule requiring airlines to disclose ancillary fees. The panel had left a stay of the rule in place, directing the agency to address certain notice and comment issues on remand–but at the same time, rejected the argument that DOT lacks rulemaking authority under 49 U.S.C. s. 41712.
The Fifth Circuit just issued its en banc opinion, which is a total of four pages. Without addressing the rulemaking authority question at all, the en banc Court–based on an apparent concession by the DOT–vacated the rule for lack of compliance with notice and comment requirements and remanded to the agency. The end result is that airline consumers remain unprotected from opaque fees, but without any Fifth Circuit precedent addressing DOT’s statutory authority.
