Air Trans Assn Can v. FAA

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 21, 2003 Decided April 8, 2003

No. 01-1446

AIR TRANSPORT ASSOCIATION OF CANADA,
PETITIONER

v.

FEDERAL AVIATION ADMINISTRATION AND ADMINISTRATOR, FAA,
RESPONDENTS

Consolidated with
01-1447, 01-1448, 01-1449,
01-1450, 01-1451, 01-1452, 01-1455,

On Petitions for Review of an Order of the
Federal Aviation Administration

M. Roy Goldberg argued the cause for petitioners. With
him on the briefs were Don H. Hainbach, Paul V. Mifsud,
Frederick S. Hird, Jr., Shelia C. Cheston, Neil J. King,

Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
 2

Frederick Robinson, Moffett B. Roller, and Michael F. Gold-
man.
Robert D. Kamenshine, Attorney, U.S. Department of Jus-
tice, argued the cause for respondents. With him on the brief
were Kirk K. Van Tine, General Counsel, U.S. Department of
Transportation, Paul M. Geier, Assistant General Counsel,
Dale C. Andrews, Deputy Assistant General Counsel, David
G. Leitch, Chief Counsel, Federal Aviation Administration,
and Robert S. Greenspan, Attorney, U.S. Department of
Justice.
Before: TATEL and GARLAND, Circuit Judges, and WILLIAMS,
Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: For the third time, we
must review the lawfulness of a Federal Aviation Administra-
tion regulation establishing fees for air traffic control services
for ‘‘overflights’’—flights by planes that go across some part
of the United States but do not take off or land there. For
the third time, we find that the FAA disregarded its statutory
mandate.

* * *
In 1996 Congress directed the FAA to set and collect fees
for the provision of air traffic control services for ‘‘over-
flights.’’ 49 U.S.C. § 45301(a); see also § 273 of the Federal
Aviation Reauthorization Act, Pub. L. 104–264. ‘‘Services for
which costs may be recovered include the costs of air traffic
control, navigation, weather services, training and emergency
services TTT and other services provided by the [FAA] or by
programs financed by the [FAA].’’ Id. § 45301(b)(1)(B). In
the form originally enacted (and applicable when the agency
promulgated the rules at issue here), it said that the fees
must be ‘‘directly related to the Administration’s costs of
providing the service rendered.’’ Id.
The FAA published its first interim final rule establishing
fees in 1997, but we found that its methodology did not yield
 3

fees ‘‘directly related to TTT the costs.’’ Asiana Airlines v.
FAA, 134 F.3d 393, 402 (D.C. Cir. 1998). In 2000 it promul-
gated a new interim final rule, Fees for FAA Services for
Certain Flights, 65 Fed. Reg. 36002, with a new cost method-
ology. It calculated its total costs for providing service to all
aircraft (overflights and non-overflights), took out a class of
‘‘overhead’’ charges, and then divided that figure by the total
number of miles flown within the United States to arrive at a
per-mile rate. The rule also excluded costs incurred by
aircraft while they were on the ground (the so-called ‘‘Sur-
face’’ airspace) or within forty miles of an airport (the so-
called ‘‘Terminal’’ airspace); it included costs incurred for all
other U.S.-controlled airspace (known as the ‘‘Enroute’’ and
‘‘Oceanic’’ airspaces). For the included airspaces it relied on
an assumption that the FAA incurred the same per-mile costs
in servicing overflights and non-overflights. Since the agency
provided no support for this necessary assumption, we re-
manded the case to the agency to explain and support its rule.
Air Transport Ass’n of Canada v. FAA, 254 F.3d 271 (D.C.
Cir.), modified 276 F.3d 599 (D.C. Cir. 2001).
In August 2001 the FAA re-promulgated the overflight rule
in largely the same form as before. Fees for FAA Services
for Certain Flights, 66 Fed. Reg. 43,680 (2001) (the ‘‘Final
Rule’’). Most importantly for this case, the agency retained
the assumption that it incurred virtually identical per-mile
costs in servicing overflights and non-overflights in the so-
called Enroute and Oceanic airspaces. During the notice and
comment period, petitioners reiterated their prior objections
that labor costs incurred in providing traffic control services
for overflights were substantially lower than for non-
overflights, and submitted supporting declarations by two air
traffic control experts. These experts most crucially contend-
ed that (1) traffic controller costs are not ‘‘fixed,’’ because the
FAA varies the number of controllers on duty ‘‘depending on
the volume of aircraft operating within the particular geo-
graphical area or sector’’; (2) flights in the ‘‘High–Altitude’’
sector (18,000 feet and above) require far less controller
attention per mile than flights in the ‘‘Low–Altitude’’ sector;
(3) overflights occur almost exclusively in the High–Altitude
 4

sector; and (4) by virtue of these differences and FAA
practices, there are means to allocate controller time as
between overflights and non-overflights far more precisely
than in the agency’s per-mile calculation. Supplemental Dec-
laration of Joseph A. Beaudoin, Joint Appendix (‘‘J.A.’’) 251–
53.
In response, the agency provided four arguments:
(1) The agency incurs the ‘‘vast majority of costs by
making its comprehensive [air traffic control] system
available to all flights (regardless of the type of aircraft
TTT );’’
(2) ‘‘[T]he FAA’s marginal cost, including labor cost,
for providing services to any flight is close to zero’’;
(3) ‘‘[T]he majority of FAA’s costs are common and
fixed costs’’; and
(4) ‘‘[T]he controllers’ responsibilities for Overflights
are not fundamentally any different than for non-
Overflights.’’
Final Rule, 66 Fed. Reg. at 43,685/1. In support of these
positions, the agency cited a new report by the economic
consulting firm of Capital Economics; but the report failed to
confront the challengers’ claims with evidence more specific,
or with an analysis more compelling, than those of the
agency’s comments cited above.
On October 11, 2001 the petitioners filed in this court for
review of the Final Rule. On November 19, 2001 Congress
adopted a statute with language amending § 45301’s stan-
dards for computing the overflight fee and limiting jurisdic-
tion for judicial review. See § 119(d) of the Aviation and
Transportation Security Act of 2001 (the ‘‘2001 Act’’), Pub. L.
107–71. We save discussion of those provisions for later, but
note in the meantime that the 2001 Act also included a
savings clause, § 141(d), saying,
This Act shall not affect suits commenced before the date
of the enactment of this Act [with certain irrelevant
exceptions]. In all such suits, proceedings shall be had,
appeals taken, and judgments rendered in the same
 5

manner and with the same effect as if this Act had not
been enacted.
Pub. L. 107–71, § 141(d).
As a result of the 2001 Act, FAA requested and received
from this court a remand in this case to determine the extent
to which the statutory amendments might require a modifica-
tion of the Final Rule. The FAA received public comments
but then terminated the remand proceeding in June 2002,
deciding that § 119 ‘‘merely clarifies and amplifies congres-
sional intent so as to provide further validation’’ of the Final
Rule, so that no new rulemaking was required. 67 Fed. Reg.
42462, 42464/1 (2002). Thus, the appeal resumed.

* * *
The FAA argues at the outset that § 119 of the 2001 Act
deprives us of jurisdiction over the key issue of this case—the
FAA’s cost-allocation judgment. Section 119(d)(3) modifies
§ 45301(b)(1)(B) by adding at the end the following sentence:
‘‘The Determination of such costs by the Administrator is not
subject to judicial review.’’ Pub. L. 107–71, § 119(d)(3).
We pretermit the parties’ competing interpretations of just
what ‘‘cost’’ determinations § 119(d)(3) screens from judicial
review. The language of the savings clause quoted above
clearly and explicitly bars the application of § 119(d)(3) to
this suit—which indubitably ‘‘commenced before the date of
enactment’’ of § 119. We note that the savings provision
contains two explicit exceptions, but it is plain—and the FAA
does not argue to the contrary—that neither has any relation
to this case.
Thus the FAA is reduced to an exceptionally lame reliance
on legislative history, pointing to language in the conference
report to the effect that § 119 was intended ‘‘to clarify
longstanding Congressional intent that the FAA expeditious-
ly and continuously collect the fees authorized under section
45301(a) of title 49.’’ H. R. Conf. Rep. No. 107–296, at 72
(2001) (emphasis supplied by respondents). It argues that if
we apply the savings clause as written this goal cannot be
 6

effected. But the FAA identifies no ambiguity in § 141(d)
that this committee reference might be thought to resolve;
ordinarily, we do not read legislative history to create other-
wise non-existent ambiguities. See, e.g., Ratzlaf v. United
States, 510 U.S. 135, 147–48 (1994). To be sure, we have held
that ‘‘legislative history may ‘shed new light on congressional
intent, notwithstanding statutory language that appears su-
perficially clear,’ ’’ U.S. Telecom. Ass’n v. F.B.I., 276 F.3d 620,
625 (D.C. Cir. 2002) (quoting Natural Resources Defense
Council, Inc. v. Browner, 57 F.3d 1122, 1127 (D.C. Cir. 1995)),
but nothing in this conference report even suggests (much
less shows) that whoever drafted this snippet of legislative
history had ever intended § 119(d) to contain some sort of
implicit exception to § 141(d). Rather, the history seems
designed only to ensure that the modifications of § 119(d)—
added only at conference—did not affirmatively engender
delay by seeming to create a substantively different standard
for the agency. See H. R. Conf. Rep. No. 107–296, at 72
(explaining that conference amendment ‘‘is not intended to
require revision of the fees recently promulgated by the
FAA’’).
Thus, we reach the merits. We have summarized above
the assertions of petitioners’ experts, which make a substan-
tial case refuting the agency’s unexplicated insistence that
miles of overflights and non-overflights in the Enroute and
Oceanic airspaces are approximately equivalent in their per-
mile generation of costs. In response the agency offers what
amount to little more than conclusory denials.
Although consideration of the agency’s specific arguments
may seem like flogging a dead horse, we proceed with the
exercise so that it may be assured that we have scrutinized its
arguments. It said in the rulemaking, for example, that the
controllers’ responsibilities in servicing overflights are not
‘‘fundamentally any different’’ from those involved in servic-
ing non-overflights. Final Rule, 66 Fed. Reg. at 43,685/1.
But there was never any contention by petitioners that the
work differed in some inherent quality. The fact that the
type of labor does not vary with flight altitude tells us little
about the quantity of labor required to service the different
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altitude sectors. Petitioners’ experts say without contra-
diction not only that more air traffic controllers are needed on
a per-mile basis to monitor and communicate with low-
altitude aircraft than with high-altitude aircraft, but that it
would be simple for the agency to calculate how many more,
because the FAA treats high- and low-altitude control as
different shifts. Beaudoin Declaration, J.A. 251–52. Each
individual controller may service both altitude sectors over
the course of his career, and maybe even over the course of
the day, but no controller services both types of flights at the
same time. Or so say petitioners’ experts, without contra-
diction. Thus, assuming the truth of petitioners’ other large-
ly uncontradicted claim—that overflights are overwhelmingly
at altitudes above 18,000 feet—the agency need only count
the number of shifts devoted to high-altitude flights to calcu-
late the range within which overflights are generating costs.
The agency observes that some overflights spend some
time at low altitudes. But this does not undermine petition-
ers’ claim that they fly predominately in the high altitude
sector, to a degree far greater than do non-overflights. If the
agency has reason to believe that overflights occur non-
trivially in the low-altitude range, obviously it can make
adjustments to reflect that proposition.
The agency also insists that the benefits of the air traffic
control system are somehow indivisible, so that throughout an
aircraft’s time in U.S. airspace it benefits from ‘‘the entire [air
traffic control] infrastructure and full scope of services TTT,
regardless of the type of flight, user, or aircraft.’’ Appellee’s
Br. at 44–45. We may assume that planes at low altitudes
benefit from services that keep high-altitude planes on
course, and even the converse. But that in no way contra-
dicts petitioners’ evidence that the costs of keeping planes on
course vary markedly as between the high and low altitudes.
Nor does the agency fare better with its conclusions that
‘‘the FAA’s marginal cost, including labor cost, for providing
services to any flight is close to zero,’’ and, in what amounts
to the same thing, ‘‘the majority of FAA’s costs are common
and fixed.’’ Final Rule, 66 Fed. Reg. at 43,685/1. These
 8

conclusions are based largely upon one section of the Capital
Economics report, in which it explains that air traffic control-
lers are paid the same amount no matter whether they
service overflights or non-overflights; all controllers receive
the same training; radar and navigation equipment are com-
mon and fixed costs; and telecommunications capabilities are
common and fixed costs. Final Rule, 66 Fed. Reg. at
43,685/2–3. Conspicuously absent from this list of consider-
ations is any analysis of the quantities of labor consumed by
the two types of flights and the divisibility of the resultant
labor costs—i.e., the factors that petitioners addressed in
their comments.
The agency attempts to remedy this deficiency by arguing
that because the FAA ‘‘has a set number of controllers to
provide TTT services nationwide TTT , [and t]hese numbers do
not change daily to manage an additional Overflight, or a non-
Overflight,’’ Final Rule, 66 Fed. Reg. at 43,709/3, fixed and
common costs dominate; thus any difference in the marginal
cost of servicing an additional overflight as opposed to an
additional non-overflight is immaterial, id. at 43,709/3–710/1.
But the lumpiness of costs, which is what the FAA points to
here, is quite separate from the notion that costs do not
systematically diverge as between the two services. Petition-
ers are not advocating that the FAA should somehow com-
pute either the incremental or the marginal cost of servicing
each overflight. On that subject, the FAA’s observation that
‘‘the metering costs of identifying TTT differences in marginal
costs would be substantial,’’ id. at 43,709/3, is both pertinent
and uncontradicted by petitioners. But it has no bearing on
petitioners’ actual claim: that overflights occur almost exclu-
sively in the high-altitude range, for which the FAA makes
assignments of controllers separate from assignments for the
low-altitude, and that per-mile servicing costs are systemat-
ically lower in the high-altitude range.
The agency finally turns to the substantive provisions of
the 2001 Act. Where the statute previously required that the
fees be ‘‘directly related to the TTT costs,’’ 49 U.S.C.
§ 45301(b)(1)(B), the 2001 Act changed it to read ‘‘reasonably
related to the TTT costs.’’ 2001 Act, § 119(d)(1). Of course
 9

as we have noted the Act’s savings clause prevents it from
having any direct effect in this case, but the agency resource-
fully suggests that even then the new language merely ‘‘clari-
fies’’ the old, pointing to the legislative history (quoted above)
that in fact suggests such a purpose. Thus, in the FAA’s
view, new language that merely ‘‘clarifies’’ the old, and which
Congress explicitly provided should not apply to a suit com-
menced when this one was, in fact should apply in the guise
of shedding light on the true meaning of the old language. A
paradox, a most ingenious paradox. But we can reject this
theory without entering the thicket of using subsequent con-
gressional pronouncements to infer the meaning of earlier
provisions. Cf. Consumer Product Safety Comm’n v. GTE
Sylvania, 447 U.S. 102, 118 n.13 (1980). The savings clause,
§ 141(d)(1) of the 2001 Act, states that ‘‘judgments are to be
rendered TTT with the same effect as if this Act had not been
enacted.’’ Using the Act to give the word ‘‘directly’’ a
meaning different from our prior understanding, whether we
call the process clarification or modification, would violate
that command.
Finding the Final Rule ‘‘not in accordance with law,’’ 5
U.S.C. § 706(2)(A), we set it aside and order the case re-
manded, id. § 706(2).
So ordered.