By Andrew Ramonas, From Corporate Counsel

The U.S. Transportation Security Administration on Monday defended a fee increase that advocates for American Airlines Group Inc., United Airlines Inc. and other air carriers are fighting in court, saying the companies haven’t shown that the levy harms them.

The TSA, in a filing with the U.S. Court of Appeals for the D.C. Circuit, argued that the financial burden of the fee primarily falls on airline passengers, not air carriers. The agency in June issued a rule that dropped a capped charge on tickets and let the agency collect fees for certain flights that start overseas.

Airlines for America and the International Air Transport Association in July filed a petition against the directive with the court, saying their members faced “significant injury” from the rule, which the TSA issued under the Bipartisan Budget Act of 2013. The fee, which air carriers must disclose in their advertised prices, is expected to cost travelers more than $1 billion annually, according to TSADontBeTHATGuy.com, an advocacy website that Airlines for America launched this year to fight the directive.

“Petitioners have not adduced any evidence demonstrating how an alleged error in the regulations impermissibly adds to … statutory burdens or otherwise causes an injury that can be redressed by a favorable decision,” wrote TSA’s lawyers, which include Jeffrey Clair and Scott McIntosh of the U.S. Department of Justice.

The Bipartisan Budget Act of 2013 increased the fee for a normal round-trip ticket for U.S. travel from a $10 maximum to $11.20, an amount Congress intended to keep capped, the airlines’ lawyers wrote in the petition. Bancroft partners Paul Clement and Jeffrey Harris, as well as Airlines for America general counsel David Berg, are representing the air carriers in the case.

Under the rule, TSA can collect more than $11.20 on round-trip flights with layovers that are longer than four hours. The agency also can get fees from trips that start overseas and have connecting flights in the U.S.

Members of Congress have expressed concerned about the TSA’s directive. U.S. House of Representatives Speaker John Boehner, R-Ohio, Rep. Paul Ryan, R-Wis., and Sen. Patty Murray, D-Wash., all have written to the agency to tell it that Congress didn’t intend to lift the fee cap.

TSA’s lawyers urged the court to ignore the lawmakers’ comments after the legislation became law, saying their remarks aren’t “a legitimate tool” to interpret the statute.

“[B]elated statements as to the meaning of legislation can hardly offer a guide as to what each chamber of Congress understood itself to be voting on when the statements, rather than being made in the course of legislative debate, come months after the bill was enacted into law,” the agency’s lawyers wrote. “The Court has accordingly held that the post-enactment views of individual legislators carry little if any weight in construing the meaning of a statute.

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