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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-10210
________________________
Agency No. FAA 2013-0988
CLAYTON COUNTY, GEORGIA,
CLAYTON COUNTY PUBLIC SCHOOLS,
FOREST PARK, GEORGIA,
RIVERDALE, GEORGIA,
LOVEJOY, GEORGIA,
MORROW GEORGIA,
LAKE CITY, GEORGIA,
JONESBORO, GEORGIA,
COLLEGE PARK GEORGIA,
Petitioners,
versus
FEDERAL AVIATION ADMINISTRATION,
Respondent.
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________________________
Petition for Review of a Decision of the
Federal Aviation Administration
________________________
(April 24, 2018)
Before WILLIAM PRYOR and JULIE CARNES, Circuit Judges, and ANTOON, *
District Judge.
JULIE CARNES, Circuit Judge:
Title 49 U.S.C. § 47133 generally prohibits “[l]ocal taxes on aviation fuel”
from being spent on anything but aviation. In 2014, the Federal Aviation
Administration clarified that it interpreted § 47133’s revenue-use restriction to
apply to all state and local governments, regardless of whether they own or operate
an airport. Notwithstanding § 47133’s prohibition, Clayton County imposes a tax
on aviation fuel sold at Hartsfield-Jackson Airport and shares the revenues with the
cities within Clayton County—College Park, Forest Park, Jonesboro, Lake City,
Lovejoy, Morrow, and Riverdale. These entities spend those tax revenues on local
municipal projects unrelated to aviation. The Clayton County Public School
system also levies a sales tax on aviation fuel sold at Hartsfield-Jackson and spends
the proceeds on education. Although Hartsfield-Jackson is partially located in
*
Honorable John Antoon II, United States District Judge for the Middle District of Florida,
sitting by designation.
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Clayton County, none of these taxing entities—Clayton County, the cities within
Clayton County, or Clayton County Public Schools (collectively “Petitioners”)—
owns or operates the airport.
In 2015, Petitioners submitted a plan to the FAA describing how they
intended to come into compliance with the FAA’s recently clarified interpretation
of § 47133. In 2016, Petitioners backtracked from the conciliatory stance they
took in 2015 and instead submitted an “Amendment” challenging the FAA’s
position that Petitioners could not legally spend tax revenue from aviation fuel on
local projects unrelated to aviation. The FAA responded in a letter, restating the
position it took in its 2014 policy clarification and expressing concern that
Petitioners might not be in compliance. The FAA asked Petitioners to contact the
FAA to discuss potential offsets and other methods for Petitioners to achieve
compliance.
Petitioners filed this lawsuit challenging the FAA’s interpretation of § 47133
as set forth in the FAA’s 2016 letter. We conclude, however, that we lack
jurisdiction to consider the merits of Petitioners’ arguments because the FAA’s
letter does not constitute final agency action.
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I. BACKGROUND
A. Congress Limits the Permissible Uses of Aviation Fuel Tax
Revenues to Aviation-Related Projects.
In 1996, Congress enacted 49 U.S.C. § 47133, which generally prohibits
local aviation fuel tax revenues from being spent on anything other than aviation.
Pub. L. No. 104-264, 110 Stat. 3213, 3271 (1996). Section 47133(a) provides that:
Local taxes on aviation fuel (except taxes in effect on December 30,
1987) or the revenues generated by an airport that is the subject of
Federal assistance may not be expended for any purpose other than
the capital or operating costs of—
(1) the airport;
(2) the local airport system; or
(3) any other local facility that is owned or operated by the
person or entity that owns or operates the airport that is directly
and substantially related to the air transportation of passengers
or property.
In 1999, the FAA issued a policy statement interpreting the scope of
§ 47133. The FAA interpreted § 47133 to apply “to all airports that have received
Federal assistance.” 64 Fed. Reg. 7696, 7698 (1999). And it stated broadly that
“State or local taxes on aviation fuel (except taxes in effect on December 30, 1987)
are considered to be airport revenue subject to the revenue-use requirement.” Id. at
7716. The FAA did not discuss whether its interpretation made any distinctions
between taxes levied by “the owner or operator of the airport” (the airport
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“sponsor”), id., and taxes levied by an entity that does not own or operate the
airport (a “non-sponsor”).
In 2013, the FAA issued a notice that it proposed to clarify its 1999 policy
statement to make clear that the FAA interpreted § 47133’s revenue-use restriction
to apply to all state and local governments, including non-sponsors. 78 Fed. Reg.
69789, 69793 (2013) (proposing to clarify that “[t]he Federal limits on use of
aviation fuel tax proceeds apply at an airport that is the subject of Federal
assistance . . . regardless of the state or local jurisdiction imposing the tax”). The
FAA received comments on its proposed clarification, including a comment from
the Georgia Departments of Revenue and Transportation. Georgia “disagree[d]”
with the FAA’s interpretation that “any entity that imposes or administers a tax on
aviation fuel may also be sanctioned even though it is neither an airport sponsor
nor the recipient of federal assistance.” And Georgia expressed concern about how
the FAA’s interpretation would impact Hartsfield-Jackson Airport and Clayton
County specifically. Although Hartsfield-Jackson is partially within Clayton
County and Clayton County taxes aviation fuel sales that occur there, Clayton
County is not the airport sponsor because it neither owns nor operates Hartsfield-
Jackson. So Georgia was concerned that “under the FAA’s new view . . . . Clayton
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County could . . . be sanctioned even though it is not the sponsor of Hartsfield-
Jackson and is not the recipient of federal assistance for Hartsfield-Jackson.”
After considering this and other comments, the FAA issued an order in 2014
codifying its proposed clarification. The FAA’s amended policy states that
§ 47133 applies “to any tax imposed on aviation fuel by either a State government
or a local government taxing authority whether or not acting as a sponsor or airport
owner or operator.” 79 Fed. Reg. 66282, 66288 (2014). Because the FAA
acknowledged that its earlier position on § 47133’s applicability to non-sponsors
may have been unclear, the FAA gave state and local governments three years to
come into compliance and set a compliance deadline for December 8, 2017. Id. at
66286. The FAA also encouraged state and local governments to submit action
plans to enable the FAA and regulated parties to work together to achieve
compliance. Id.
B. Petitioners Spend Aviation Fuel Tax Revenues on Projects
Unrelated to Aviation.
Petitioners tax aviation fuel sold at Hartsfield-Jackson Airport even though
Petitioners neither own nor operate the airport and do not receive federal assistance
for it.1 Since 1994, Clayton County has imposed a sales tax on aviation fuel sold at
1
The City of Atlanta, which lies outside Clayton County, is the airport sponsor for Hartsfield-
Jackson. Clayton County once had an ownership interest in a different regional airport, but sold
that interest in 2012.
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Hartsfield-Jackson. And since 1997, Clayton County Public Schools has levied its
own tax on such sales. The revenues from these taxes are spent on local municipal
and school projects unrelated to aviation.
In 2015, after the FAA clarified that it interpreted § 47133 to apply to non-
sponsors’ aviation fuel tax revenues, Petitioners submitted an action plan to the
FAA describing their tax scheme and plan to comply with § 47133. Petitioners
described the difficulty, practically and legally, of updating their tax scheme to
exclude revenues from sales taxes on aviation fuel sold at Hartsfield-Jackson. As
an alternative, they proposed to offset their aviation fuel tax revenues with the
value of other taxes Petitioners do not impose on Hartsfield-Jackson (such as
property taxes) and in-kind services provided to the airport (such as police and
municipal court services).
A year later, Petitioners sent a letter to the FAA that Petitioners labeled as an
“Amendment” to their plan. The letter did not change the proposed action plan,
but instead argued that the FAA’s interpretation that § 47133 applied to non-
sponsor local governments was erroneous and unlawful.
The FAA responded in a letter (the “Letter”) two months later on November
17, 2016. It is this Letter that Petitioners contend constitutes final agency action.
In the Letter, the FAA states that it “disagrees” with Petitioners’ interpretation of
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§ 47133 and “believe[s] federal law prohibits all state and local governments from
diverting aviation fuel tax revenues for any non-aviation related purpose.” And the
FAA observes that Petitioners’ use of aviation fuel tax revenues “to support a
variety of public services, including public education and infrastructure, is the use
of the tax to fund ‘unrelated municipal services and activities . . .’ contrary to the
express purpose of the federal ban on the diversion of aviation fuel tax revenue.”
The FAA also states that it is “concerned that [Petitioners] will not be in
compliance with the aviation fuel tax revenue use requirements by December 8,
2017.” To remedy this, the FAA advises Petitioners that the agency is “available
to discuss with [them] in more detail permissible offsets of diversions of aviation
fuels tax revenues, and other potential means to achieve compliance.” Finally, the
FAA states that the Letter “represents the present view of the FAA’s Office of
Chief Counsel based on the facts presented” by Petitioners, “does not constrain
future FAA action or opinion,” and is only an “advisory response”—not “final
agency action.”
In December 2016, after receiving a letter from Georgia congressman David
Scott about § 47133’s applicability to Petitioners, the FAA sent a letter to
Congressman Scott confirming that it interpreted § 47133 to apply to all state and
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local governments, and that Petitioners should pursue other offsets or legislative
remedies to comply with § 47133.
Petitioners filed this lawsuit under 49 U.S.C. § 46110(a) challenging the
FAA’s interpretation of § 47133 set forth in the Letter.
II. DISCUSSION
To be judicially reviewable under 49 U.S.C. § 46110(a), an FAA order must
be final. Green v. Brantley, 981 F.2d 514, 519 (11th Cir. 1993);2 see also City of
Oxford v. FAA, 428 F.3d 1346, 1349 n.2 (11th Cir. 2005) (“49 U.S.C. § 46110(a)
grants this court jurisdiction to review final orders of the FAA.”). To be final, two
requirements must be met. “First, the action must mark the consummation of the
agency’s decisionmaking process—it must not be of a merely tentative or
interlocutory nature. And second, the action must be one by which rights or
obligations have been determined, or from which legal consequences will flow.”
U.S. Army Corps of Engineers v. Hawkes Co., Inc., 136 S. Ct. 1807, 1813 (2016)
(quoting Bennett v. Spear, 520 U.S. 154, 177–78 (1997)). We must also take into
account “pragmatic” concerns, focusing “on whether judicial review at th[is] time
2
Green addressed 49 U.S.C. § 1486(a), an earlier codification of 49 U.S.C. § 46110(a). Act of
July 5, 1994, Pub. L. No. 103-272, 108 Stat. 745.
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will disrupt the administrative process.” Riverkeeper v. EPA, 806 F.3d 1079, 1083
(11th Cir. 2015) (quoting Bell v. New Jersey, 461 U.S. 773, 779 (1983)).
Petitioners argue that the FAA’s Letter constitutes final agency action in two
different ways. They contend that the Letter (1) sets forth a new, binding
interpretation of 49 U.S.C. § 47133 and (2) reflects that the FAA has decided that
Petitioners’ tax scheme violates § 47133 and that the FAA will enforce its
interpretation of § 47133 against Petitioners. Neither position is persuasive.
Petitioners first argue that the Letter constitutes final agency action because
it sets forth a new interpretation of § 47133: that is, it applies to non-sponsors like
Petitioners. They contend that the FAA’s earlier 2014 policy clarification did not
define “non-sponsor,” established only that § 47133 applied to “certain” non-
sponsors, and generally did not indicate that Petitioners would be affected.
Whether the Letter established a new interpretation or merely restated the
FAA’s earlier interpretation matters because, to be final, the challenged agency
action “must be one by which rights or obligations have been determined, or from
which legal consequences will flow.” Hawkes, 136 S. Ct. at 1813 (quotation marks
omitted). An agency’s restatement of an already-existing policy or interpretation
does not, on its own, determine any rights or obligations and imposes no legal
consequences. Then-Judge John Roberts best explained this in a case where the
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D.C. Circuit considered facts substantially similar to those here: a regulated party
presented its interpretation of the EPA’s regulations, and the EPA stated in a
response letter that it disagreed. See Indep. Equip. Dealers Ass’n v. EPA, 372 F.3d
420, 422–25 (D.C. Cir. 2004). The D.C. Circuit held that the EPA’s letter was not
final agency action because it “merely restated . . . [the] EPA’s longstanding
interpretation,” so the letter “neither announced a new interpretation of the
regulations nor effected a change in the regulations themselves.” Id. at 427. “By
restating [the] EPA’s established interpretation . . . the EPA Letter tread no new
ground. It left the world just as it found it, and thus cannot be fairly described as
implementing, interpreting, or prescribing law or policy.” Id. at 428 (emphasis
omitted); see also General Motors Corp. v. EPA, 363 F.3d 442, 449–51 (D.C. Cir.
2004) (holding that a letter from an agency that “reflect[ed] neither a new
interpretation nor a new policy” did not “impose new obligations”).
Here, the Letter merely restates the FAA’s interpretation of § 47133 that was
established two years earlier in the FAA’s 2014 policy clarification.3 The 2014
FAA order adopting the clarification states numerous times that § 47133’s
revenue-use restriction applies to all local governments, sponsors and non-sponsors
3
Petitioners do not challenge the FAA’s 2014 policy clarification, likely because such a
challenge would be untimely. See 49 U.S.C. § 46110(a) (a petition “must be filed not later than
60 days after the order is issued” unless “there are reasonable grounds for not filing by the 60th
day”).
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alike. For example, it states that Ҥ 47133(a) imposes a limitation on the use of
local taxes on aviation fuel, regardless of whether the tax is imposed by a sponsor
or non-sponsor.” 79 Fed. Reg. at 66285 (emphasis added). Elsewhere, it states
that the FAA interprets § 47133 “to obligate non-sponsor State and local
governments to use proceeds from aviation fuel taxes for certain purposes.” 4 Id.
(emphasis added). And the amended policy states that § 47133 applies “to any tax
imposed on aviation fuel by either a State government or a local government taxing
authority whether or not acting as a sponsor or airport owner or operator.” 5 Id. at
66288.
Although the clarification does not expressly define “non-sponsor,” the
meaning is clear. The FAA’s earlier 1999 order, which the 2014 policy
clarification modified, defines “sponsor” as “the owner or operator of the airport
that accepts Federal assistance and executes grant agreements or other documents
4
See also, e.g., 79 Fed. Reg. at 66286 (“The amendment we adopt today is a final decision . . . .
[and] binds the FAA . . . as well as airport sponsors and non-airport sponsors (including a State, a
political subdivision of a State, and a political authority of at least 2 States) covered by this
Policy.”), 66287 (discussing “enforcing compliance with § 47133 by non-sponsor State and local
governments”).
5
See also 79 Fed. Reg. at 66287 (stating, without qualification, that “State or local taxes on
aviation fuel (except taxes in effect on December 30, 1987) are considered subject to the
revenue-use requirements in . . . [§] 47133”), 66288 (“The Federal limits on use of aviation fuel
tax proceeds apply at an airport that is the subject of Federal assistance . . . whether or not the
airport is currently subject to the terms of an AIP grant agreement, and regardless of the State or
local jurisdiction imposing the tax.”).
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required for the receipt of Federal assistance.” 64 Fed. Reg. at 7716. Thus, a non-
sponsor is an entity that does not own or operate the airport and does not execute
federal grant agreements.
And the clarification’s passing reference to § 47133 applying only to
“certain non-sponsors,” 79 Fed. Reg. at 66285, does not muddy its meaning. The
phrase is most naturally read as a reference to § 47133’s grandfather clause. See
49 U.S.C. § 47133(a) (grandfathering in “taxes in effect on December 30, 1987”).
In the background section summarizing the FAA’s clarification, the FAA’s order
notes that § 47133’s revenue-use requirement applies to “certain State and local
government taxes on aviation fuel,” namely “proceeds from both new taxes and to
existing taxes that do not qualify for grandfathering from revenue use
requirements.” 79 Fed. Reg. at 66283. When read in context, the reference to
“certain” non-sponsors does not suggest that there was ambiguity in the FAA’s
interpretation of § 47133 as to whether it applied to non-sponsors, including
Petitioners.
In fact, before filing this lawsuit, Petitioners and others had acknowledged
that the FAA’s policy clarification interpreted § 47133 to apply to non-sponsors,
including Petitioners. Specifically, before the FAA issued its clarification, the
Georgia Departments of Transportation and Revenue filed a comment recognizing
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that “under the FAA’s new view . . . . Clayton County could . . . be sanctioned
even though it is not the sponsor of Hartsfield-Jackson and is not the recipient of
federal assistance for Hartsfield-Jackson.” And, after the clarification was issued,
Petitioners themselves acknowledged that the FAA interpreted § 47133 to apply to
non-sponsor local governments, including them. Petitioners’ action plan
recognized that “[t]he policy amendment requires that State and local taxes on
aviation fuel be subject to the airport revenue use restrictions.” And Petitioners
explained that they submitted an action plan because they “collect local taxes on
aviation fuel that . . . per the FAA Policy, are required to be transitioned to full
compliance.”
Thus, the FAA’s Letter merely restates its interpretation of § 47133 that was
established two years earlier in its policy clarification. In the Letter, the FAA
“disagree[s] with [Petitioners’] contention that the federal prohibition on the
diversion of aviation fuel tax revenue for non-aviation purposes only applies to
state or local governments who received federal airport improvement grants or are
an airport sponsor.” Instead, the FAA states that it “believe[s] federal law
prohibits all state and local governments from diverting aviation fuel tax revenues
for any non-aviation related purpose.” The Letter also recognizes that the FAA’s
interpretation was originally established in its 2014 policy clarification. Because
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the Letter only restates that earlier interpretation, the Letter does not carry any
legal consequences for Petitioners and cannot be final in this regard. Any legal
consequences of the FAA’s interpretation of § 47133 flow from the 2014 policy
clarification—not the Letter sent two years later.
Second, Petitioners contend that the Letter is final because it determines that
the FAA will enforce § 47133 against Petitioners. Hence, Petitioners claim, they
risk significant civil penalties if they fail to follow the Letter. We have recognized,
however, that an agency’s observation that a party’s practices may potentially
violate the law does not necessarily mark the culmination of the agency’s
decisionmaking process so as to determine a party’s legal rights or obligations.
For example, we addressed an “interim response” from the EPA that expressed
“significant concerns about the adequacy” of Alabama’s pollutant discharge
permitting program in Riverkeeper, 806 F.3d at 1080. The EPA’s letter stated that
the EPA would “work with [Alabama] and give [Alabama] an opportunity to
address [the EPA’s] concerns” before the EPA determined whether or not to
withdraw Alabama’s authority to administer the program. Id. We held that the
EPA’s letter was not final agency action because the EPA had not “come to a
decision on whether to commence program withdrawal proceedings,” and the letter
itself carried no legal consequences as the EPA “ha[d] not determined, after a
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public hearing, that Alabama ha[d] failed to properly administer” the program as
required for withdrawal under federal law. Id. at 1082–83.
Riverkeeper governs here, and we hold that the Letter is not final agency
action in the sense that it determines that Petitioners have violated the law or
threatens enforcement. The Letter reveals that the FAA has not conclusively
determined that Petitioners are in violation of § 47133. It states that the FAA is
“concerned that [Petitioners] will not be in compliance with the aviation fuel tax
revenue use requirements by December 8, 2017.” And it advises Petitioners that
the FAA is “available to discuss with [them] in more detail permissible offsets of
diversions of aviation fuels tax revenues, and other potential means to achieve
compliance.” The Letter concludes by stating that it “represents the present view
of the FAA,” “does not constrain future FAA action or opinion,” and is only an
“advisory response” that “does not constitute a final agency action.” And just as
the EPA’s interim response in Riverkeeper could not create legal consequences
unless the EPA followed the statutory requirements for withdrawal, the Letter by
itself does not determine Petitioners’ rights or obligations. It is “beyond any doubt
that further administrative action” is required before Petitioners face actual
consequences. See Nat’l Parks Conservation Ass’n v. Norton, 324 F.3d 1229,
1238 (11th Cir. 2003). Indeed, at oral argument, Petitioners acknowledged both
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that the Letter does not direct Petitioners to do anything except follow the FAA’s
earlier policy clarification and that the Letter does not threaten enforcement. Thus,
it is not a final agency action.
This conclusion is consistent with the pragmatic concerns at play here,
which focus “on whether judicial review at th[is] time will disrupt the
administrative process.” Riverkeeper, 806 F.3d at 1083 (internal quotation marks
omitted). First, judicial review of the Letter would interfere with the agencies’
ability to consult with and advise regulated parties about how to comply with
federal law and regulations. The Letter only sets forth Petitioners’ pre-existing
obligation to comply with the FAA’s interpretation of § 47133. If a court
intervened now, it might mean that regulated parties could bring lawsuits whenever
an agency advises a party of its already-existing obligations. Such a result would
discourage agencies from offering advisory guidance which in turn would harm
regulated parties who appreciate and rely on such guidance. This prospect would
“quickly muzzle any informal communications between agencies and their
regulated communities - communications that are vital to the smooth operation of
both government and business.” Indep. Equip. Dealers, 372 F.3d at 428. Second,
judicial intervention at this stage would interfere with agencies’ discretionary
authority over whether to bring enforcement actions. The Letter makes clear that
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Petitioners and the FAA are (or at least were at the time) in ongoing discussions
about Petitioners’ compliance with § 47133. If a court intervened, it would force
the agency to litigate over what may be a preliminary conclusion made without a
full grasp of the relevant facts. This could “well have a negative impact on the
give and take between” agencies and those they regulate. Riverkeeper, 806 F.3d at
1083–84.
In holding that we lack jurisdiction to consider Petitioners’ challenge to a
letter, we note that Petitioners have, and had, other avenues to challenge the FAA’s
interpretation of § 47133. For example, if the FAA brings an enforcement action
in the future, Petitioners will be able to raise their claims then. See 5 U.S.C. § 703
(“Except to the extent that prior, adequate, and exclusive opportunity for judicial
review is provided by law, agency action is subject to judicial review in civil or
criminal proceedings for judicial enforcement.”). And Petitioners could have
challenged the FAA’s interpretation of § 47133 when the 2014 policy clarification
was originally issued. See 49 U.S.C. § 46110 (allowing a party to challenge a final
FAA order within sixty days after it is issued). It was Petitioners who chose not to
challenge the 2014 policy clarification at a time when such a challenge would have
been timely.
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CONCLUSION
In the end, Petitioners’ lawsuit is both too late and too early. It comes too
late to challenge the FAA’s policy clarification issued in 2014, and it comes too
early to challenge an FAA enforcement action that may never happen. Because the
Letter is not final agency action, we DISMISS the petition for lack of jurisdiction.
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