GARLAND, Circuit Judge:
This appeal raises the following question: Can Congress constitutionally permit a federally-subsidized 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.
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).
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),
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.
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:
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 continuing appropriations acts that effectively retain the Murray Amendment's limitation through the end of FY
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 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).
The plaintiffs contend that the Murray Amendment violates their Fifth Amendment right to equal protection
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 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, 105 S.Ct. 2787, 86 L.Ed.2d 384 (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, 92 S.Ct. 609, 30 L.Ed.2d 642 (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.
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.
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, 104 S.Ct. 1058, 79 L.Ed.2d 299 (1984) (internal quotation marks omitted), "[n]othing in the First Amendment . . . suggests that the rights to speak, associate, and petition require
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 ABA Supp. Br. at 12-14 (distinguishing Marijuana Policy Project on similar grounds).
There are two flaws in this argument. First, notwithstanding the plaintiffs' insistence on doctrinal distinctions between rights and remedies,
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.
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.
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
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 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, 92 S.Ct. 2099, 32 L.Ed.2d 728 (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, 113 S.Ct. 2637 (quoting Nordlinger v. Hahn, 505 U.S. 1, 15, 112 S.Ct. 2326, 120 L.Ed.2d 1 (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, 113 S.Ct. 2096).
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, 113 S.Ct. 2096. 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
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, 128-30, 105 S.Ct. 2520, 86 L.Ed.2d 81 (1985); Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445-46, 36 S.Ct. 141, 60 L.Ed. 372 (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, 120 S.Ct. 2246, 147 L.Ed.2d 326 (2000); Robertson v. Seattle Audubon Soc., 503 U.S. 429, 437-41, 112 S.Ct. 1407, 118 L.Ed.2d 73 (1992). Accordingly, the plaintiffs' subsidiary arguments have no greater purchase than their principal claims.
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.