NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITY OF LOS ANGELES, No. 19-73164
Petitioner,
BENEDICT HILLS ESTATES MEMORANDUM*
ASSOCIATION; BENEDICT HILLS
HOMEOWNERS ASSOCIATION,
Petitioners-Intervenors,
v.
FEDERAL AVIATION
ADMINISTRATION; STEPHEN M.
DICKSON, in his official capacity as
Administrator, Federal Aviation
Administration,
Respondents.
On Petition for Review of an Order of the
Federal Aviation Administration
Argued and Submitted September 14, 2021
Pasadena, California
Before: GOULD, BERZON, and COLLINS, Circuit Judges.
Los Angeles (“the City”) seeks this court’s review, under 49 U.S.C. § 46110,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
of a letter the Federal Aviation Administration (“FAA”) sent the City in response
to one the City sent the agency. In its letter, the City alleged the FAA had admitted
to changing flight procedures—specifically, that it was now intentionally directing
flights departing Hollywood Burbank Airport (“Airport”) from Runway 15 to head
further south before banking a turn north—and did not follow the requisite
environmental and administrative procedures before making the change. The City
requested that the FAA rescind the alleged change and direct air traffic controllers
to follow previous protocols. The FAA’s six-sentence letter in response (“FAA
Letter”) stated only that it did not earlier concede any changes to the air traffic
control protocol for the Airport and that any southern shift in flight paths is due to
factors built into the existing protocol, such as weather, pilot abilities, and air
traffic volume and complexity.
49 U.S.C. § 46110(a) allows “a person disclosing a substantial interest in an
order issued by . . . the Federal Aviation Administration” to seek review directly
by a court of appeals. Id. (emphasis added). The term “order” in the statute has
been interpreted to mean “final order,” borrowing from the APA’s requirement that
a reviewable order be “the whole or part of a final disposition . . . of an agency in a
matter other than rulemaking.” S. Cal. Aerial Advertisers’ Ass’n v. FAA, 881 F.2d
672, 675 (9th Cir. 1989) (quoting 5 U.S.C. § 551(6)) (interpreting the statute at
issue here by looking to the APA). Both parties agree that if the FAA Letter is not
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a final order, we lack jurisdiction. Because we hold the FAA Letter was not a final
order, we dismiss this matter for lack of jurisdiction.
When considering a purported final order, our overarching consideration is
whether the document “imposes an obligation, denies a right, or fixes some legal
relationship.” MacLean v. Dep’t of Homeland Sec., 543 F.3d 1145, 1149 (9th Cir.
2008) (quoting Gilmore v. Gonzales, 435 F.3d 1125, 1132 (9th Cir. 2006)). We use
a four-part test to make the determination, asking whether the document has all of
the following features:
(1) it is supported by a reviewable administrative record, (2) it is a definitive
statement of the agency’s position, (3) it has a direct and immediate effect
on the day-to-day business on the party asserting wrongdoing, and (4) it
envisions immediate compliance with [the order’s] terms.
MacLean, 543 F.3d at 1149 (cleaned up). The FAA Letter does not meet these
requirements.
Reviewable administrative record. We need not consider the first element
because none of the other three elements is met.
Definitive statement of the agency’s position. The FAA Letter did not
express a definitive agency position. Purported final orders that comment only
“briefly and tentatively” upon a subject but do not “initiate an agency process” nor
“specify the exact form” that subsequent action must take do not constitute
definitive statements. See Air California v. U.S. Dep’t of Transp., 654 F.2d 616,
620-21 (9th Cir. 1981). The FAA Letter does not make a definitive statement of
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the agency’s position. It comments briefly upon an earlier statement made by the
City, and it does so to the effect that the agency position remains what it was.
The most the FAA Letter does is disavow the City’s interpretation of earlier
statements an FAA employee made in a public forum. An agency’s statement
disputing an interested party’s interpretation of an earlier agency statement is not
the type of definitive statement of policy MacLean requires. See, e.g., MacLean,
543 F.3d at 1149 (finding a definitive statement in an agency document
determining the protected legal status of a contested message); Gilmore, 435 F.3d
at 1131-33 (finding a definitive statement in an agency directive laying out a
detailed security policy and how it should be implemented).
Direct and immediate effect. The FAA Letter produced no direct and
immediate effect. This conclusion follows from the second factor. The FAA Letter
announced no new agency position that could have caused a change from the status
quo. According to the FAA, air traffic controllers, before, during, and after the
FAA Letter have followed the same procedure at the airport: they issue directions
to pilots based on factors such as temperature and air traffic volume to keep flight
paths separate. The FAA Letter had no bearing on this procedure other than to
reaffirm it, so it “left the world just as it found it.” Indep. Equip. Dealers Ass’n v.
EPA, 372 F.3d 420, 428 (D.C. Cir. 2004). “The Letter neither announced a new
interpretation of the regulations nor effected a change in the regulations
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themselves.” Id. at 427.
Immediate compliance. Finally, from the foregoing it follows that the FAA
Letter did not “envision[] immediate compliance” with its terms. MacLean, 543
F.3d at 1149 (citation omitted). The Letter contains no terms with which the FAA
could have envisioned compliance.
In sum, we hold that the FAA Letter we are asked to review is not a final
order, so we lack jurisdiction to review it. We cannot and do not decide whether
the City could have raised its concerns about the current flight patterns around the
Airport in a different manner that would have resulted in jurisdiction in this court
or a district court to review those patterns. PETITION DENIED.
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