Spirit Airlines v. TRAN

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 3, 2026
• Docket: 24-60373
• Status: Published

Opinion

Case: 24-60231 Document: 295-1 Page: 1 Date Filed: 02/03/2026

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

____________ FILED February 3, 2026 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

United States Department of Transportation,

Respondent,

consolidated with _____________

No. 24-60373 _____________

Spirit Airlines, Inc.; Frontier Group Holdings, Inc.,

Respondent. Case: 24-60231 Document: 295-1 Page: 2 Date Filed: 02/03/2026

______________________________

Petitions for Review of an order of the Department of Transportation, Agency No. 89 Fed. Reg. 34,620 ______________________________

Before Elrod, Chief Judge, and Jones, Smith, Stewart, Richman, Southwick, Haynes, Graves, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, Douglas, and Ramirez, Circuit Judges. Per Curiam: Among the issues before us is whether the Department of Transportation’s (DOT) rule entitled “Enhancing Transparency of Airline Ancillary Service Fees” was issued pursuant to the Administrative Procedure Act’s (APA) notice-and-comment requirement. See 89 Fed. Reg. 34,620 (Apr. 30, 2024). We conclude that DOT failed to comply with this provision. Therefore, we must apply the APA’s “default” remedy— vacatur. See 5 U.S.C. § 706(2); Cargill v. Garland, 57 F.4th 447, 472 (5th Cir. 2023) (en banc). The Department, both in its brief and at oral argument, conceded that it violated the APA when it failed to provide additional notice and the opportunity to comment on a study that was “critical to the Rule’s issuance.” 1 DOT acknowledges that this “procedural violation may have affected the agency’s determinations about the Rule’s content and scope” and therefore violates the APA. See 5 U.S.C. § 706(2)(D) (stating that rules promulgated “without observance of procedure required by law” must be held “unlawful and set aside”). Generally, the entire regulation must be vacated unless “we can say without any substantial doubt that the agency

_____________________ 1 The Department represented for the first time at the en banc oral argument that it would be “happy to start all over again.”

2 Case: 24-60231 Document: 295-1 Page: 3 Date Filed: 02/03/2026

24-60231 c/w No. 24-60373

would have adopted the severed portion on its own.” Interstate Nat. Gas Ass’n of Am. v. Pipeline & Hazardous Materials Safety Admin., 114 F.4th 744, 753 (D.C. Cir. 2024) (quoting Am. Petroleum Inst. v. EPA, 862 F.3d 50, 71 (D.C. Cir. 2017)). Given that DOT relied upon the study to justify its cost– benefit analysis, the procedural defect compromised the entire regulation. Thus, we must vacate the entire Rule. Apart from the notice-and-comment issue, questions have also been raised about other defects in the Rule. See, e.g., Airlines for Am. v. Dep’t of Transp., 110 F.4th 672, 677 (5th Cir. 2024). But in light of DOT’s agreement to the remedy of vacatur—and the agency’s stated intent to redesign or rescind the Rule—we pretermit those issues as premature. The Rule is hereby VACATED.

3 Case: 24-60231 Document: 295-1 Page: 4 Date Filed: 02/03/2026

Haynes, Circuit Judge, joined by Southwick and Douglas, Circuit Judges, concurring: This case has evolved into a different arena since a year ago when we issued the panel opinion that I wrote. Most importantly, the Department of Transportation is an agency under a different president and with a different approach and thoughts than it was at the time of the rule that the panel opinion addressed. The Department assured the court it is creating a new proposed rule, and it agreed that we could vacate the rule that was what the panel addressed. Accordingly, we concur.