Safe Extensions, Inc. v. Federal Aviation Administration

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 19, 2007 Decided December 11, 2007

No. 06-1412

SAFE EXTENSIONS, INC.,
PETITIONER

v.

FEDERAL AVIATION ADMINISTRATION AND
MARION C. BLAKEY, ADMINISTRATOR,
RESPONDENTS

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

David M. Hernandez argued the cause and filed the briefs
for petitioner.

Peter R. Maier, Attorney, U.S. Department of Justice,
argued the cause for respondents. With him on the brief was
Robert S. Greenspan, Attorney.

Before: HENDERSON, TATEL, and KAVANAUGH, Circuit
Judges.

Opinion for the Court filed by Circuit Judge TATEL.
 2

TATEL, Circuit Judge: In this case, a company argues that
the Federal Aviation Administration arbitrarily and capriciously
imposed a strict test on its product but not on other, similar
products. The FAA responds with a laundry list of reasons why
this court supposedly cannot hear this challenge. The FAA then
argues that even if we may hear the case, substantial evidence
supports its decision. Because the FAA’s jurisdictional
arguments are wholly meritless and because the agency offers
nothing more to justify its decision than one employee’s bare
assertions unsupported by any actual evidence, we grant the
petition for review.

I.
Federal law authorizes the Federal Aviation Administration
to “prescribe minimum safety standards for . . . operating an
airport serving any passenger . . . aircraft designed for at least 31
passenger seats,” 49 U.S.C. § 44701(b), and directs the agency
to “promote safe flight of civil aircraft . . . by prescribing . . .
regulations and minimum standards for . . . practices, methods,
and procedure[s] the [agency] finds necessary for safety in air
commerce,” id. § 44701(a). Invoking this authority, the FAA
issues “advisory circulars” that establish testing requirements
and product specifications for a range of items airports use.
Private labs test products to determine whether they comply with
FAA standards, and the FAA then publishes a list of approved
items. To obtain federal funding, airports must agree to buy only
products on this list. Thus, airports receiving federal
funding—“virtually every public use airport,” Resp’t’s Br.
3—are prohibited from buying unapproved products.

Among the many products the FAA regulates are lights that
line airport runways and the metal bases in which those lights sit.
Light bases used in runways must be very strong because they
experience powerful forces—such as airplanes landing on them
and snow plows driving over them—and must retain their
 3

original alignment to illuminate the runway properly. Also,
because runways are repaved frequently, the height of the bases
must be adjustable so they can remain flush with the runway’s
surface.

Petitioner Safe Extensions, Inc., manufactures one type of
light base used in airport runways. The FAA calls the light bases
Safe Extensions produces “adjustable products.” Other
manufacturers make a competing technology that the FAA calls
“fixed products.” With both technologies, the base is placed in
a hole in the runway and secured with concrete or special grout.
The two technologies differ in the mechanisms used to adjust
their height. Adjustable products—the ones Safe Extensions
manufactures—have an extension piece at their top; the bottom
of the extension piece is threaded, as is the top of the base. To
adjust the height, the extension piece is twisted upwards. By
contrast, fixed products are made taller by stacking linked
extensions on top of the base.

The FAA has long required runway light bases to pass a
torque test, which checks whether the base can withstand a
strong force without rotating. From 1970 to 2005, this torque
test applied to all light bases, both adjustable and fixed, and the
test was conducted on light bases installed in the concrete or
grout that secured them. In April 2005, however, the FAA
issued Advisory Circular 42D, which specified that torque
testing would only be required for “bases that utilize a method of
height adjustment that is integral to the base or extension and are
designed for field adjustment.” Advisory Circular 150/5345-
42D: Specification for Airport Light Bases, Transformer
Housings, Junction Boxes, and Accessories ¶¶ 3.1.3.4, 4.3.10
(Apr. 29, 2005). The FAA apparently intended this language to
mean that only adjustable products, not fixed products, had to
pass the torque test. Thus, though the torque test itself remained
unchanged, only adjustable products now had to pass it.
 4

Thirteen months later, the FAA issued Advisory Circular
42E (AC-42E), which made the required torque test far more
stringent. Advisory Circular 150/5345-42E: Specification for
Airport Light Bases, Transformer Housings, Junction Boxes, and
Accessories (May 8, 2006). AC-42E specified that torque testing
of adjustable products now had to be conducted on freestanding
light bases, i.e., light bases not yet embedded in concrete or grout
the way they would be in the field. Id. at note after ¶ 4.1.7, ¶
4.3.10. According to Safe Extensions, this caused an outcry
among companies that install adjustable products, with several
complaining to the FAA that the new test “simply won’t work”
and “essentially eliminates the use of” adjustable products. Oral
Arg. at 3:25. After talking to the FAA, some of these companies
were left with the impression that the agency would address their
concerns by issuing a revised advisory circular. Id. at 2:04, 3:34.

Just two months after issuing AC-42E, the FAA emailed a
draft Advisory Circular 42F to a few companies that make or
install runway light bases, though not Safe Extensions. Email
from David Evans de Maria, FAA Airport Engineering Division,
to David Edwards et al. (Aug. 2, 2006). The torque testing
requirements in the draft circular, however, were identical to
those in AC-42E; that is, the draft required freestanding torque
tests for adjustable products but no torque test for fixed products.
Draft Advisory Circular 150/5345-42F: Specification for Airport
Light Bases, Transformer Housings, Junction Boxes, and
Accessories ¶¶ 4.1.7, 4.3.10 (July 31, 2006).

Two companies offered comments criticizing the draft of
AC-42F. Olson Industries, which installs both adjustable and
fixed products, argued that adjustable products could never pass
the freestanding torque test and that the circular was unfair
because fixed products, if subjected to the test, couldn’t pass it
either. Email from Ted Olson, Jr., President, Olson Industries,
to David Evans de Maria, FAA Airport Engineering Division
 5

(Aug. 16, 2006). The company also complained that the revised
test was unjustified because it had never seen a problem with an
installed adjustable product in its twenty years of experience. Id.
Another installer of runway lights, Siemens Airfield Solutions,
made exactly the same points. Email from Willis Trainor,
Certification Test Engineer, Siemens Airfield Solutions, to David
Evans de Maria, FAA Airport Engineering Division (Aug. 16,
2006).

At some point before the FAA issued the final version of
AC-42F, an agency employee prepared a response to these
comments. Because this response is the only justification the
agency has provided for its decision, we quote it in full:

REJECTED – Fixed [products] have anti-rotational
devices inherent to the physical structure of the device
itself that act in bearing against the surrounding grade.
Adjustable [products] in known currently available
designs have no physical features inherent to the
device itself to prevent rotation, and rely on a
chemical bond acting in shear. There are known
examples where this bond has failed in actual
application following exposure to real world loading
and environmental conditions. Torque testing of
specimens prepared in laboratory conditions may be
able to pass torque tests simulating being mounted in
surrounding grade, but experience has shown that the
same care and attention is not possible to control in
the field. Experience has also shown that required
production testing of in situ torque tests designed to
give a certain level of confidence are not performed.
As adjustable height extensions have no inherent anti-
rotational physical feature that bears against the
surrounding grade it must demonstrate its anti-
rotational capability free standing so that the
 6

uncontrollable quality of its installation is not relied
upon for public safety.

Comment Resolutions for Draft Advisory Circular 150/5345-
42F: Specification for Airport Light Bases, Transformer
Housings, Junction Boxes, and Accessories 1-2 (Sept. 5, 2006).
This response appears on a plain sheet of paper in the agency’s
appendix to its brief. The response says nothing about when or
even if the FAA shared it with anyone. At oral argument, Safe
Extensions’s counsel told us that the FAA emailed the response
to selected companies at approximately the same time the agency
published the final version of AC-42F. Oral Arg. at 7:40, 8:15.
According to Safe Extensions, it never received the response
directly from the FAA and had no opportunity to address it
before the final circular was published. Id. at 7:40. The FAA’s
counsel disputed none of this.

The FAA issued the final version of AC-42F on October 17,
2006, making no changes from the draft circular regarding the
torque testing required for adjustable products used in runways.
Advisory Circular 150/5345-42F: Specification for Airport Light
Bases, Transformer Housings, Junction Boxes, and Accessories
¶ 4.3.10 (Oct. 17, 2006). Thus, adjustable products remained
subject to a freestanding torque test fixed products did not have
to pass. On December 15, Safe Extensions filed a petition for
review of AC-42F pursuant to 49 U.S.C. § 46110(a), which
allows any “person disclosing a substantial interest in an order
issued by the . . . Federal Aviation Administration with respect
to aviation duties and powers designated to be carried out by the
[agency] . . . [to] apply for review of the order by filing a petition
for review in the United States Court of Appeals for the District
of Columbia Circuit.” Safe Extensions argues that the FAA
acted arbitrarily and capriciously by imposing a freestanding
torque test on adjustable products but not fixed products. The
FAA responds that this court lacks jurisdiction to review Safe
 7

Extensions’s challenge and that, in any event, it acted reasonably
when it decided to treat the two products differently. We address
the jurisdictional issues first and then consider whether the FAA
acted arbitrarily and capriciously.

II.
The FAA argues that we lack jurisdiction to hear this case
for four independent reasons: (1) AC-42F is not an “order”
reviewable under 49 U.S.C. § 46110; (2) Safe Extensions lacks
prudential standing; (3) AC-42F addresses issues committed by
law to agency discretion; and (4) because the differential
treatment Safe Extensions objects to originated in AC-42E, not
AC-42F, the company’s petition is untimely given that the
company filed it more than sixty days after the FAA issued AC-
42E. We address each argument in turn.

Not an Order

The Administrative Procedure Act, 5 U.S.C. § 551 et seq.,
defines an “order” as “the whole or a part of a final disposition
. . . of an agency in a matter other than rulemaking.” Id. § 551(6)
(emphasis added). To be deemed “final” and thus reviewable as
an order under 49 U.S.C. § 46110, an agency disposition “must
mark the ‘consummation’ of the agency’s decisionmaking
process,” and it “must determine ‘rights or obligations’ or give
rise to ‘legal consequences.’” City of Dania Beach v. FAA, 485
F.3d 1181, 1187 (D.C. Cir. 2007) (quoting Vill. of Bensenville v.
FAA, 457 F.3d 52, 68 (D.C. Cir. 2006)). As a general principle,
“the term ‘order’ in [section 46110] should be read expansively.”
Id.

The FAA first argues that AC-42F “neither imposes a legal
obligation upon any person nor creates any legal rights.”
Resp’t’s Br. 15. This is absurd. As Safe Extensions points out,
“if a manufacturer’s equipment does not meet AC-42F’s
 8

specifications, it cannot be” placed on the list of FAA-approved
products airports can buy. Pet’r’s Opening Br. 22. Thus, AC-
42F effectively prohibits airports from buying light bases that
fail the new torque test, and it bars manufacturers like Safe
Extensions from selling their products to airports. These are
clear legal consequences of enormous significance to Safe
Extensions.

Nothing in Aerosource, Inc. v. Slater, 142 F.3d 572 (3d Cir.
1998), upon which the FAA relies, suggests a different result.
There the FAA had simply issued a warning about mistakes
Aerosource made in its repair work. See id. at 575-76; see also
id. at 581 (“[T]his case concerns nothing more than the issuance
of advisory warnings and the FAA’s refusal to withdraw the
warnings.”). The warning neither barred anyone from
contracting with the company nor barred the company from
continuing to work. See id. at 581. Thus, while the warning
created bad publicity for the company and harmed its finances,
it imposed no legal obligations on it or anyone else. By contrast,
AC-42F has the obvious legal consequences mentioned above.

Next, the FAA argues that to qualify as an order, an agency
decision must not only be final, but also “be accompanied by a
record sufficient to permit judicial review,” Resp’t’s Br. 16—a
record the FAA claims AC-42F lacks. This argument ignores
our cases interpreting section 46110. In both Dania Beach and
Bensenville we held that agency actions are reviewable as orders
under section 46110 so long as they are final, i.e., so long as they
mark the consummation of the agency’s decisionmaking process
and determine rights or obligations or give rise to legal
consequences. 485 F.3d at 1187; 457 F.3d at 68.

Ignoring these recent and controlling cases, the FAA points
to our decision over thirty years ago in Deutsche Lufthansa
Aktiengesellshchaft v. Civil Aeronautics Board, 479 F.2d 912
 9

(D.C. Cir. 1973), where, reviewing an earlier version of section
46110, we said: “It is the availability of a record for review and
not the holding of a quasi[-]judicial hearing which is now the
jurisdictional touchstone.” Id. at 915. The FAA has taken this
statement entirely out of context. In Lufthansa, we considered
whether we were bound by United Gas Pipe Line Co. v. Federal
Power Commission, 181 F.2d 796 (D.C. Cir. 1950), in which
“this court held that it had no jurisdiction over direct appeals
from the promulgation of agency regulations where there had not
been an evidentiary record established in a quasi[-]judicial
proceeding before the agency.” Lufthansa, 479 F.2d at 915. The
key question in Lufthansa, then, was whether we could review an
agency’s action despite the absence of a quasi-judicial
proceeding. We held that we could, at least when an evidentiary
record existed. Id. at 916. Thus, in Lufthansa we set forth a
sufficient condition for review when no quasi-judicial
proceeding had occurred, not a necessary condition for reviewing
agency action. And now that we have rejected the United Gas
rule entirely, see Inv. Co. Inst. v. Bd. of Governors of Fed.
Reserve Sys., 551 F.2d 1270, 1276-77 (D.C. Cir. 1977), this
sufficient condition is irrelevant because there is no longer any
doubt about whether we may review agency actions when the
agency held no hearing.

Several factors confirm this reading of Lufthansa. First, as
noted above, our recent cases regarding whether agency actions
qualify as orders never consider the adequacy of the record,
instead asking only whether the action was final. See Dania
Beach, 485 F.3d at 1187; Bensenville, 457 F.3d at 68. Second,
the statement in Lufthansa that the FAA relies on is a dead letter:
though we cited it a few times after Lufthansa, see, e.g., City of
Rochester v. Bond, 603 F.2d 927, 933 n.26 (D.C. Cir. 1979), and
a few other circuits have picked it up, see, e.g., Sierra Club v.
Skinner, 885 F.2d 591, 593 (9th Cir. 1989), Sima Prods. Corp. v.
McLucas, 612 F.2d 309, 313 (7th Cir. 1980), we haven’t cited it
 10

for decades, most likely because the demise of the United Gas
rule has rendered Lufthansa’s reasoning irrelevant. Third, the
FAA’s proposed reading of Lufthansa is precluded by
subsequent Supreme Court cases making clear that the lack of an
adequate agency record to review does not eliminate a circuit
court’s jurisdiction, but rather requires the court to remand to the
agency so the agency can provide a record for review. For
example, in Florida Power & Light Co. v. Lorion, 470 U.S. 729
(1985), the Court rejected the argument that if “the reviewing
[circuit] court [lacks] an adequate agency-compiled factual basis
to evaluate the agency action” it should require the case to be
brought in “a district court with factfinding powers [that] could
make up that deficiency,” id. at 743, explaining:

Such a [result] cannot . . . be squared with
fundamental principles of judicial review of agency
action. “[T]he focal point for judicial review should
be the administrative record already in existence, not
some new record made initially in the reviewing
court.” Camp v. Pitts, 411 U.S. 138, 142 (1973). The
task of the reviewing court is to apply the appropriate
APA standard of review to the agency decision based
on the record the agency presents to the reviewing
court. If the record before the agency does not support
the agency action, if the agency has not considered all
relevant factors, or if the reviewing court simply
cannot evaluate the challenged agency action on the
basis of the record before it, the proper course, except
in rare circumstances, is to remand to the agency for
additional investigation or explanation.

Id. at 743-44 (some citations omitted). Fourth, adopting the
FAA’s additional proposed requirement for an agency act to
count as an order would create perverse incentives. If an agency
action qualified as an order only when accompanied by a
 11

sufficient record to permit review, agencies could escape judicial
review by simply refusing to create a record to support their
decisions. This cannot be the law. Finally, directly
contradicting its argument here, the FAA has itself contended
elsewhere that section 46110 applies even when the agency fails
to provide an adequate record for review. For example, in
Dania Beach the FAA argued that for an act to qualify as an
order under section 46110, it need only “mark the consummation
of the agency’s decisionmaking process” and have legal
consequences. Resp’t’s Br. 16, Dania Beach, 485 F.3d 1181
(No. 05-1328) (quoting Bennett v. Spear, 520 U.S. 154, 178
(1997)). Similarly, in Gilmore v. Gonzales, 435 F.3d 1125 (9th
Cir. 2006), the FAA flatly stated: “the presence of an
administrative record is not required for § 46110 to apply.”
Defs.-Appellees’ Br. 28, Gilmore, 435 F.3d 1125 (No. 04-
15736).

Even if we accepted the FAA’s argument that actions
qualify as reviewable orders only when supported by an
adequate factual record, however, the record here, though
exceedingly thin, is sufficient to permit review. The FAA
assures us that its appendix “includes all the documents upon
which the agency relied.” Resp’t’s Br. 17. Although it claims
that the documents “cannot reflect the entirety of the information
and experience that the agency brought to bear in issuing the
Circular,” id., we have never required that much information
from agencies—we just need enough to determine whether the
agency’s decision was arbitrary. If the FAA’s documents fail to
demonstrate the reasonableness of its decision, it means that the
agency either has chosen not to write down the reasons for its
decision or is unable to do so. Neither possibility is acceptable
under the Administrative Procedure Act.
 12

Prudential Standing

“To establish prudential standing, a party’s ‘grievance must
arguably fall within the zone of interests protected or regulated
by the statutory provision . . . invoked in the suit.’” Nuclear
Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1266 (D.C. Cir. 2004)
(quoting Bennett, 520 U.S. at 162). The basic question is: “who
may and who may not invoke the power of the courts to enforce
the terms of a statute[?]” Hazardous Waste Treatment Council
v. Thomas, 885 F.2d 918, 921-22 (D.C. Cir. 1989). In this case,
Congress has already answered this question in section
46110(a): “a person disclosing a substantial interest in an order
issued by the . . . Federal Aviation Administration with respect
to aviation duties and powers designated to be carried out by the
Administrator . . . may apply for review of the order.” See also
Int’l Bhd. of Teamsters v. Transp. Sec. Admin., 429 F.3d 1130,
1134 n.3 (D.C. Cir. 2005) (equating prudential standing under
section 46110(a) with a party’s substantial interest in the order).
Here Safe Extensions unquestionably has a substantial interest
in the order: if left in place, AC-42F will destroy the market for
the company’s product.

The FAA argues that Safe Extensions nevertheless falls
outside the zone of interests protected by section 46110(a)
because the statute technically allows the FAA to regulate
airports, not manufacturers. Again, this argument is absurd.
AC-42F effectively regulates Safe Extensions because it
prevents the company from selling its product to airports.
Moreover, to have prudential standing, Safe Extensions must
show only that its “interest is ‘arguably’ one regulated or
protected by ‘the statutory provision at issue.’” PDK Labs., Inc.
v. DEA, 362 F.3d 786, 791 (D.C. Cir. 2004) (quoting Nat’l
Credit Union Admin. v. First Nat’l Bank, 522 U.S. 479, 492
(1998)). Because Safe Extensions has easily met that minimal
standard, the company has prudential standing.
 13

Agency Discretion

For its third jurisdictional argument, the FAA claims that
AC-42F is unreviewable because the issues it addresses are
committed by law to agency discretion. Specifically, the FAA
claims that there is no meaningful standard for this court to
apply, that advisory circulars are within the FAA’s “managerial
discretion,” and that judicial review of advisory circulars would
greatly tax the agency’s resources. All three arguments lack
merit.

As to the first point, the FAA is certainly correct that “[i]f
no ‘judicially manageable standard’ exists by which to judge the
agency’s action, meaningful judicial review is impossible and
the courts are without jurisdiction to review that action.”
Steenholdt v. FAA, 314 F.3d 633, 638 (D.C. Cir. 2003) (quoting
Heckler v. Chaney, 470 U.S. 821, 830 (1984)). But that is
hardly the case here. The FAA issued AC-42F pursuant to 49
U.S.C. § 44701, which authorizes the agency to “(b) . . .
prescribe minimum safety standards for . . . (2) operating an
airport serving any passenger . . . aircraft designed for at least 31
passenger seats,” and directs the agency to “(a) . . . promote safe
flight of civil aircraft . . . by prescribing . . . (5) regulations and
minimum standards for . . . practices, methods, and procedure[s]
the [agency] finds necessary for safety in air commerce.” This
provides a perfectly workable standard to guide the court,
namely whether the FAA’s actions promote air safety.

We have previously found far more ambiguous statutory
directives reviewable. For example, in Dickson v. Secretary of
Defense, 68 F.3d 1396 (D.C. Cir. 1995), we held that we could
review the Army Board for Correction of Military Records’s
refusal to waive a statute of limitations period under 10 U.S.C.
§ 1552(b), which allows the Board to “excuse a failure to file
within three years . . . if it finds it to be in the interest of justice.”
 14

If “in the interest of justice” provides a judicially manageable
standard, then “necessary for safety” certainly does as well. See,
e.g., Union of Concerned Scientists v. Nuclear Regulatory
Comm’n, 824 F.2d 108 (D.C. Cir. 1987) (reviewing whether
regulations “provide[d] adequate protection to the health and
safety of the public” under 42 U.S.C. § 2232(a)).

This conclusion finds support in the APA’s “strong
presumption of reviewability.” Steenholdt, 314 F.3d at 638. As
the Supreme Court has declared: “judicial review of a final
agency action by an aggrieved person will not be cut off unless
there is persuasive reason to believe that such was the purpose
of Congress.” Abbott Labs. v. Gardner, 387 U.S. 136, 140
(1967). “Because of this presumption favoring judicial review,
we require ‘clear and convincing evidence of a legislative
intention’ to bar such review.” James Madison Ltd. by Hecht v.
Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (quoting Ball, Ball
& Brosamer, Inc. v. Reich, 24 F.3d 1447, 1450 (D.C. Cir.
1994)). Nothing in the Federal Aviation Act even hints that
Congress intended decisions like the one at issue here to be
unreviewable. Indeed, demonstrating just the opposite, 49
U.S.C. § 46110(a) gives this court jurisdiction to review FAA
orders challenged by any “person disclosing a substantial
interest in [them].”

The FAA next argues that AC-42F “reflects the FAA’s
managerial choice, one not susceptible to judicial review.”
Resp’t’s Br. 28. Not only does this argument amount to an
attack on the very principles underlying the APA, including its
“basic presumption of judicial review [for] one ‘suffering legal
wrong because of agency action,’” Abbott Labs., 387 U.S. at 140
(quoting 5 U.S.C. § 702)), but it also ignores that advisory
circulars are no more a “managerial choice” than are the
regulations this court routinely reviews from countless other
agencies. See, e.g., ASG Indus., Inc. v. Consumer Prod. Safety
 15

Comm’n, 593 F.2d 1323 (D.C. Cir. 1979) (reviewing the
Consumer Product Safety Commission’s regulations governing
architectural glazing materials). The FAA cites not a single case
to support this baseless contention.

Finally, the FAA argues that “allowing judicial review of
issuances like this Circular would be very disruptive to the
agency’s operations.” Resp’t’s Br. 28. If review is allowed
here, the agency complains, disgruntled manufacturers will sue
the FAA whenever it issues new advisory circulars. Given that
this is, as best we can tell, the first time in the FAA’s decades of
issuing advisory circulars that a manufacturer has ever
petitioned for review of a circular regulating its products, we
highly doubt the factual premise underlying this argument.
More fundamentally, the FAA’s argument ignores the APA’s
very purpose: to subject agency decisions to judicial scrutiny.
No one pretends that judicial review of agency action is a
pleasant day at the beach for agencies, and although escaping
judicial review would of course be less “disruptive to the
[FAA’s] operations,” id., it would also leave regulated entities,
as well as the flying public—which depends for its safety on
solid, well supported FAA decisionmaking—unprotected from
arbitrary and capricious agency action.

Furthermore, the cases the FAA cites to support its
argument have nothing to do with the issue before us. Both
National Federation of Federal Employees v. United States, 905
F.2d 400 (D.C. Cir. 1990), and Curran v. Laird, 420 F.2d 122
(D.C. Cir. 1969), involved military decisions about national
security issues this court felt were beyond its purview. See Nat’l
Fed’n, 905 F.2d at 405-06; Curran, 420 F.2d at 131-32. And in
Southern Railway Co. v. Seaboard Allied Milling Corp., 442
U.S. 444 (1979), the Supreme Court concluded that it could find
no law to apply and only then said the disruptive consequences
of allowing review confirmed this position. See id. at 455-59.
 16

Moreover, a ruling for the petitioner in Southern Railway would
have required the Interstate Commerce Commission to provide
detailed justifications for millions of individual rates it approved
each year, a disruption several orders of magnitude greater than
the FAA would suffer in this case. See id. at 457. In short, these
cases provide no support for the ludicrous proposition that courts
may not review FAA advisory circulars because judicial review
would create more work for the agency. Like virtually every
other agency, the FAA must defend its decisions in court.

Timeliness

Although the statute granting us jurisdiction in this case
generally requires petitions for review of FAA orders to be filed
within sixty days of the challenged order, it provides that we
“may allow the petition to be filed after the 60th day . . . if there
are reasonable grounds for not filing by the 60th day.” 49
U.S.C. § 46110(a). Neither party discussed timeliness in their
briefs, but in preparing for this case we discovered that the
differential treatment Safe Extensions challenges stems from
AC-42E, not AC-42F, and the company filed its petition more
than sixty days after the FAA issued AC-42E. Accordingly, we
directed the parties to be prepared to discuss this issue at oral
argument.

At oral argument, Safe Extensions’s counsel asserted that
there were “reasonable grounds” for the company’s failure to
file by the 60th day after AC-42E’s issuance. He said that after
the FAA issued AC-42E, the agency “told the industry . . . :
‘Ignore Advisory Circular 42E.’” Oral Arg. at 2:04. The reason
for the FAA’s directive, according to the company, was that AC-
42E produced “a significant uproar in the industry,” id. at 3:06,
causing numerous companies to meet with the FAA and tell the
agency the advisory circular was unworkable. “As a result,”
counsel said, “the FAA told industry virtually immediately:
 17

‘You’re right. . . . We’re going to issue a new draft, a draft F.”
Id. at 3:34. Based on these representations, and hoping to avoid
litigation, the company decided to “wait and see if the FAA
[would] address[] the issues [Safe Extensions] had with 42E” in
42F. Id. at 4:25.

The FAA’s counsel responded that now that the agency had
thought about the issue, it believed the petition was untimely.
Disputing the version of events described by Safe Extensions,
the agency’s counsel said “I cannot believe that there was any
dialogue in which the FAA told the industry that it need not
comply with 42E,” id. at 17:51, and “I’ve talked to the
responsible FAA officials on this, and if there had been some
informal undertaking to reexamine this issue, I am confident that
they would have told me about it,” id. at 21:31.

Because of this factual dispute we asked both parties to
submit affidavits or documents to support their claims. Safe
Extensions’s affidavits strongly support the company’s
description of what happened. One affidavit, from a former
FAA employee who now works for a company that writes
specifications for the agency, declares that FAA officials told
him “to basically ignore AC-42E because [it] would be
eliminated and replaced with [AC-42F],” and that he passed this
information along to Safe Extensions. Oswald Aff. 1-2. In
another affidavit, the president of a company that manufactures
light bases declares that an FAA employee told him to “forget
about AC-42E because the FAA was currently revising AC-42E
and that it would become [AC-42F].” Tappe Aff. 1-2.
Moreover, the president of Safe Extensions tells us that when he
“expressed [his] concerns to [the FAA] about how AC-42E dealt
with [adjustable products],” the FAA responded “that [he]
should wait until AC-42F comes out because the FAA was
currently revising AC-42E.” Reinert Aff. 1-2. Bolstering these
affidavits, Safe Extensions’s petition for review alleged that the
 18

FAA had “failed to provide any rational basis for refusing to
revise the Advisory Circular,” Pet. for Review 2, Safe
Extensions, Inc. v. FAA, No. 06-1412 (D.C. Cir. Dec. 15, 2006)
(emphasis added), suggesting the company had reason to believe
the agency was planning to address its concerns with AC-42E in
AC-42F.

For their part, the FAA’s affidavits make only the very
narrow claim that the agency never told anyone that it “would
reconsider the torque testing standards for [runway] light bases
in connection with a revision of Circular 42-E,” Smith Aff. 4; de
Maria Aff. 4, leaving open the possibility that FAA employees
made more general or ambiguous statements about AC-42E that
could have confused petitioner and others. Moreover, the
FAA’s failure to raise the timeliness issue itself—despite
presenting nearly every other jurisdictional argument
imaginable—leads us to question how strongly the agency really
believes that Safe Extensions should have filed earlier.

Based on this evidence, we conclude that Safe Extensions
had reasonable grounds for filing more than sixty days after the
FAA issued AC-42E. This conclusion finds support in our
precedent. In Paralyzed Veterans of America v. Civil
Aeronautics Board, 752 F.2d 694 (D.C. Cir. 1985), rev’d on
other grounds, Dep’t of Transp. v. Paralyzed Veterans of
America, 477 U.S. 597 (1986), we held that an organization had
reasonable grounds for waiting more than sixty days to file a
challenge when the group was “[a]ware that the rule might be
undergoing modification[] and unable to predict how extensive
any modification would be,” and therefore “elected to wait until
the regulation was in final form before seeking review.” Id. at
705 n.82. This aptly describes what occurred here. As we said
in Paralyzed Veterans: “Any delay simply served properly to
exhaust petitioners’ administrative remedies, and to conserve the
resources of both the litigants and this court.” Id.
 19

III.
Having disposed of the FAA’s jurisdictional arguments, we
turn to the merits. Our standard of review is both familiar and
deferential: we review the FAA’s actions under the APA to
determine whether they were “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A); Cmtys. Against Runway Expansion, Inc. v. FAA,
355 F.3d 678, 685 (D.C. Cir. 2004). “Under this standard, we
‘may reverse only if the agency’s decision is not supported by
substantial evidence, or the agency has made a clear error in
judgment.’” J.A. Jones Mgmt. Servs. v. FAA, 225 F.3d 761, 764
(D.C. Cir. 2000) (quoting Kisser v. Cisneros, 14 F.3d 615, 619
(D.C. Cir. 1994)); see also 49 U.S.C. § 46110(c) (FAA
“[f]indings of fact . . . , if supported by substantial evidence, are
conclusive.”).

To be sure, no statute requires the FAA to engage in the
notice and comment process or hold proceedings on the record
when issuing advisory circulars. Instead, advisory circulars fall
into the vast category of “informal adjudications” in which
agencies routinely engage. Nonetheless, as we explained in
Association of Data Processing Service Organizations, Inc. v.
Board of Governors of Federal Reserve System, 745 F.2d 677
(D.C. Cir. 1984), the agency’s decision still must be supported
by substantial evidence—otherwise it would be arbitrary and
capricious. For “it is impossible to conceive of a ‘nonarbitrary’
factual judgment supported only by evidence that is not
substantial in the APA sense.” Id. at 684. The difference
between this informal adjudication and a formal adjudication on
the record is thus not the amount of evidence the agency must
provide to support its decision, but where the evidence may be
found. In an adjudication on the record “substantial evidence
[must] be found within the record of closed-record
proceedings,” while in an informal adjudication the agency can
 20

provide the court with any evidence it had before it when it
made its decision. Id.

In its brief, the FAA offers three rationales for requiring
freestanding torque testing of adjustable products but not fixed
products. First, it claims that it has had “extensive experience
with [f]ixed [p]roducts,” while “[a]djustable [p]roducts are
relatively new,” justifying the “FAA’s determination to subject
the newer product to more rigorous laboratory tests.” Resp’t’s
Br. 33. If true, this rationale might support the FAA’s
differential treatment of the two products. But the FAA has
provided absolutely no evidence to back it up, and as we made
clear in McDonnell Douglas Corp. v. Department of the Air
Force, 375 F.3d 1182 (D.C. Cir. 2004), an agency’s “declaration
of fact that is ‘capable of exact proof’ but is unsupported by any
evidence” is insufficient to make the agency’s decision non-
arbitrary. Id. at 1191 n.4.

Second, the FAA claims that fixed products “are configured
with anti-rotational devices as part of their design,” while
adjustable products “lack this feature.” Resp’t’s Br. 31. For this
reason, adjustable products, but not fixed products, “depend on
chemical bonding” with the concrete or grout surrounding them
“to maintain their stability.” Id. at 33. Since it cannot possibly
test every adjustable product after installation to ensure the
chemical bond works properly, the agency claims “it was
appropriate . . . to guard against the heightened risk posed by
improper installation . . . by requiring more rigorous laboratory
testing.” Id. For its part, Safe Extensions claims in its reply
brief and an attached appendix that its products actually do have
anti-rotational devices and that many fixed products lack such
devices. The FAA asks us to ignore this argument and Safe
Extensions’s appendix because the company never submitted
evidence to support its argument to the FAA. The FAA may
well be right about this. But we have no need to examine the
 21

reply brief and appendix because the FAA has failed to provide
substantial evidence for its argument that fixed products, unlike
adjustable products, have anti-rotational devices.

The only evidence regarding the presence of anti-rotational
devices in light bases appears in the agency’s response to
industry comments on AC-42F. There, an FAA employee
wrote: “Fixed . . . bases and extensions have anti-rotational
devices inherent to the physical structure of the device itself . . . .
Adjustable height extensions in known currently available
designs have no physical features inherent to the device itself to
prevent rotation . . . .” Comment Resolutions for Draft Advisory
Circular 150/5345-42F, at 1. The FAA, however, has provided
no documents, drawings, or affidavits to support this claim, and
the agency admits that the record it has provided us “includes all
the documents upon which the agency relied.” Resp’t’s Br. 17.
As we have said many times before, “[a]n agency’s unsupported
assertion does not amount to substantial evidence.” Algonquin
Gas Transmission Co. v. FERC, 948 F.2d 1305, 1313 (D.C. Cir.
1991).

As its final rationale for treating fixed and adjustable
products differently, the FAA tells us that “it received a number
[sic] reports of problems in the field with respect to [a]djustable
[p]roducts.” Resp’t’s Br. 34. Again, the only evidence the FAA
has provided to support this rationale appears in its response to
industry comments:

Adjustable [products] in known currently available
designs have no physical features inherent to the
device itself to prevent rotation, and rely on a
chemical bond acting in shear. There are known
examples where this bond has failed in actual
application following exposure to real world loading
and environmental conditions.
 22

Comment Resolutions for Draft Advisory Circular 150/5345-
42F, at 1. This rationale is even weaker than the previous two.
While the first rationale entirely lacked support and the second
had insufficient support, this one is actually contradicted by
evidence the FAA had before it. In their comments on the draft
of AC-42F, two companies that have installed thousands of
adjustable products said they were “not aware of any field
related issues with” adjustable products. Email from Ted Olson,
Jr.; Email from Willis Trainor. By contrast, the FAA offered no
evidence whatsoever of problems in the field with adjustable
products, thus failing to provide substantial evidence to support
this rationale.

In sum, because the agency’s decision to treat fixed and
adjustable products differently finds no support in the evidence
the agency considered, we find it arbitrary and capricious. See
Data Processing Serv. Orgs., 745 F.2d at 683-84 (explaining
that an agency decision unsupported by substantial evidence is
arbitrary and capricious).

IV.
Because the FAA’s approach in this case flouts fundamental
principles underlying the Administrative Procedure Act, we
grant the petition for review.

So ordered.