United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 11, 2008 Decided March 21, 2008
No. 06-1386
ST. JOHN’S UNITED CHURCH OF CHRIST, ET AL.,
PETITIONERS
v.
FEDERAL AVIATION ADMINISTRATION AND MARION C.
BLAKELY, ADMINISTRATOR,
RESPONDENTS
CITY OF CHICAGO,
INTERVENOR FOR RESPONDENT
On Petition for Review of an Order of the
Federal Aviation Administration
Joseph V. Karaganis argued the cause for petitioners.
With him on the briefs were A. Bruce White, John W. Kalich,
Robert E. Cohn, and Christopher T. Handman.
M. Alice Thurston, Attorney, U.S. Department of Justice,
argued the cause for respondent. With her on the brief was
Todd S. Aagaard, Attorney. Lisa E. Jones and John A. Bry-
son, Attorneys, entered appearances.
2
Benna Ruth Solomon, Deputy Corporation Counsel, Cor-
poration Counsel of the City of Chicago, argued the cause for
intervenor. With her on the brief were Christopher M.
Grunewald, Assistant Corporation Counsel, and Sean H.
Donahue, David T. Goldberg, and Michael G. Schneiderman.
Before: ROGERS, BROWN and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge BROWN.
BROWN, Circuit Judge: Petitioners seek review of the
Federal Aviation Administration’s (FAA’s) grant of money to
the City of Chicago, reimbursing costs of certain work per-
formed as part of the City’s expansion of O’Hare Interna-
tional Airport. We dismiss the petition for lack of standing.
I
Chicago plans on acquiring land in nearby Elk Grove
Village and the Village of Bensenville for the expansion of
O’Hare Airport. Petitioner Bensenville complains Chicago’s
acquisition will destroy its parkland and affordable housing
while petitioner Elk Grove complains the acquisition will de-
stroy many businesses and deprive it of tax revenue and other
economic benefits. In addition, one of the project’s runways
will require Chicago to “relocate” St. Johannes Cemetery—a
disturbance which petitioners St. John’s United Church of
Christ, Helen Runge, and Shirley Steele claim will substan-
tially burden their religious exercise.
In an earlier case, the petitioners challenged the FAA’s
approval of the project’s airport layout plan (ALP)—an order
the FAA calls the “Record of Decision” (ROD)—and the
FAA’s letter of intent (LOI). Vill. of Bensenville v. FAA, 457
F.3d 52 (D.C. Cir. 2006). The LOI established a 15-year
3
schedule under which the FAA will reimburse Chicago for
the Government’s share of project costs, and stated the gov-
ernment’s intention to obligate from future budget authority a
maximum of $337 million, paid by annual grants of $20 to
$29 million. Before issuing the LOI, the FAA considered
whether the O’Hare project met the requirements for airport
improvement project (AIP) grants. Analysis and Review of
City of Chicago’s Application for Letter of Intent AGL 06-01,
at 8–9 (Nov. 18, 2005), 10 J.A. 5451–52. But “final applica-
tion” of those requirements would occur when FAA made “a
final decision on the award of a specific amount of funding.”
Id.
We dismissed petitioners’ challenges to these findings,
holding the LOI unreviewable because it was not an “order”
under 49 U.S.C. § 46110(a).1 The LOI was not an order be-
cause it was not final. The LOI did not obligate the govern-
ment to pay the grants; Chicago still had to apply each year,
and Congress still had to appropriate the money. Vill. of Ben-
senville, 457 F.3d at 68–69. In any event, petitioners lacked
standing because vacating the LOI would not redress their
injuries. Chicago could complete the project even without the
$337 million—a mere fraction of the costs of the project. Id.
at 69–70.
Chicago applied for the first annual grant in the middle of
2006. In September 2006, Chicago accepted FAA’s offer of
$29.3 million to reimburse Chicago for certain work per-
formed on land not affecting the petitioners. The two con-
cluded a standard grant agreement containing various condi-
1
We also rejected the petitioners’ challenges to certain deter-
minations in the ROD, and their claim that FAA’s approval of the
ALP violated the Religious Freedom and Restoration Act (RFRA),
42 U.S.C. § 2000bb et seq. Vill. of Bensenville, 457 F.3d at 65, 70–
72.
4
tions, among which Chicago must “complete all AIP funded
projects without undue delays and in accordance with the
terms” of the grant and FAA regulations. Terms and Condi-
tions of Accepting Airport Improvement Grants 8 (June
2005), 10 J.A. 5692. About a year later, the FAA authorized
Chicago to collect $1.3 billion in passenger facilities charges
(PFC’s) to help finance the O’Hare project. Notice of Pas-
senger Facility Charge (PFC) Approvals and Disapprovals, 72
Fed. Reg. 61,204, 61,205–06 (Oct. 29, 2007).
Petitioners seek review of the single $29.3 million AIP
grant. They claim that certain FAA determinations were
flawed, and that the FAA violated RFRA.
II
To establish Article III standing, petitioners must show a
“substantial probability” they have been injured, the FAA’s
grant to Chicago caused their injuries, and the court could re-
dress those injuries. Sierra Club v. EPA, 292 F.3d 895, 899
(D.C. Cir. 2002). Because FAA’s $29.3 million grant reim-
burses Chicago for completed work that did not affect the pe-
titioners, how the grant causes their injuries is a mystery.
Perhaps realizing this, petitioners try to characterize the order
they challenge as “more than $2 billion in federally approved
funding assistance.” Petr.’s Br. 21. To reach this figure, peti-
tioners add the $337 million LOI and the $1.3 billion in
PFC’s. They also add federal funding they expect Chicago
will seek because of a $400 million cost overrun.
“It’s clear,” say petitioners, “Chicago cannot construct
the [project] … without massive AIP and PFC financial assis-
tance.” Id. at 20–21. There is, however, nothing “clear”
about this. The LOI is not before the court. Chicago’s accep-
tance of the first of the LOI’s fifteen grants, does not author-
ize review of the fourteen grants the FAA has not yet offered.
5
Nor is the $1.3 billion in PFC’s before the court.2 Peti-
tioners think otherwise because the determinations FAA made
in awarding the AIP grant here are supposedly the same ones
FAA makes when authorizing Chicago to collect PFC’s. But
the determinations are not the same. While a project is eligi-
ble for PFC funding when the project is for “airport develop-
ment or airport planning,” as the AIP statute uses those terms,
the project need not meet the same standards for approving an
AIP grant. Air Transp. Ass’n of Am. v. FAA, 169 F.3d 1, 9
(D.C. Cir. 1999). Thus, an FAA order stating “AIP and PFC
eligibility of projects is identical” does not support the peti-
tioners. See Passenger Facility Charge, FAA Order 5500.1, at
51 (Aug. 9, 2001). That phrase simply means a project meet-
ing the definition of “airport development or airport planning”
is eligible for PFC funding.
Next, petitioners assert the grant agreement between
FAA and Chicago “contains an FAA-imposed clause that
compels Chicago to complete the [project] (necessarily de-
stroying St. Johannes … and parklands, homes and businesses
in Bensenville and Elk Grove Village).” Petr.’s Br. 21. Peti-
tioners apparently focus on the following grant condition:
Chicago “shall carry out and complete all AIP funded projects
without undue delays.” But the “[f]ailure to comply with
grant conditions” can result only “in suspension or termina-
tion of the grant.” Airport Improvement Program Handbook,
FAA Order 5100.38C, at 208 (June 28, 2005). FAA cannot
“compel” Chicago to complete the O’Hare project. Nor does
Chicago need any compelling. Chicago designed the plan for
the project; it submitted that plan to the FAA and fought for
its approval. Vill. of Bensenville, 457 F.3d at 65. Chicago
will provide most of the funding and is prepared to obtain
funding from other sources if federal money is unavailable.
2
And needless to say, FAA funding the petitioners speculate
Chicago will seek is not now at issue.
6
Id. So even if the FAA could compel Chicago to complete
the project, vacating the grant condition would not redress the
petitioners’ injuries because Chicago is committed to com-
pleting the project anyway.
In addition, the court has already concluded that vacating
the $337 million in the LOI would not redress petitioners’ in-
juries because federal money plays a “minor role” and Chi-
cago could replace it with other sources of funding. That
conclusion alone seems to sink the petitioners’ challenge to
the $29.3 million grant. However, petitioners argue that re-
dressability conditions have changed because of a $400 mil-
lion cost overrun and the majority-in-interest airlines refusing
Chicago’s request to issue more bonds. Thus, according to
petitioners, if the court overturns AIP and PFC funding, Chi-
cago can no longer replace that funding. Petitioners again err
by adding the PFC authorization and the LOI to the single
AIP grant they challenge here. Moreover, they have not
shown a “substantial probability” that Chicago would scrap
the O’Hare project if the court vacated the $29.3 million
grant.
Petitioners claim they need not demonstrate such “high
probability” of redressability because 49 U.S.C. § 46110(a)
and RFRA gives them a “procedural right” to protect their
interests, which they may assert “without meeting all the
normal standards for redressability and immediacy,” Massa-
chusetts v. EPA, 127 S. Ct. 1438, 1453 (2007) (quoting Lujan
v. Defenders of Wildlife, 504 U.S. 555, 573 n.7 (1992)).
However, that rule applies only when a party challenging an
agency’s procedural failure cannot “establish with any cer-
tainty” that the agency would reach a different decision.
Lujan, 504 U.S. at 573 n.7; see also Fla. Audubon Soc’y v.
Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1996). But the redress-
ability obstacle the petitioners face is uncertainty over what
Chicago would do—not the FAA. Thus, the petitioners must
7
satisfy the normal standard for redressability. They have not.
“[I]t is entirely conjectural whether the nonagency activity
that affects [petitioners] will be altered or affected by the
agency activity they seek to” overturn. Lujan, 504 U.S. at
571 (plurality opinion).
III
Petitioners have not shown that the single $29.3 million
grant has caused their injuries, or that the court can redress
those injuries. We therefore dismiss their petition for lack of
standing.
So ordered.