Luther Kurtz v. Faa

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 1 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

LUTHER KURTZ AND SKYDIVE No. 20-73440
COASTAL CALIFORNIA, INC. D/B/A
PHOENIX AREA SKYDIVING,

Petitioners, FAA Docket No. 16-16-01

v.

FEDERAL AVIATION MEMORANDUM*
ADMINISTRATION,

Respondent.

Petition for Review of an Action of the Federal Aviation Administration
Argued and Submitted January 13, 2022
Pasadena, California

Before: RAWLINSON and WATFORD, Circuit Judges, and RAKOFF,** District
Judge.
A skydiving operator and its owner petition for review of a one-paragraph

letter from the Federal Aviation Administration (“FAA”) to the City of Casa Grande,

Arizona (“the City”), which is the “sponsor” of the one-runway Casa Grande

Municipal Airport (“CGZ”). The letter, dated September 28, 2020, clarified several

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
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conditions the FAA set forth in an August 12, 2020 letter to the City conditionally

approving a corrective action plan (“CAP”). The FAA had earlier determined in a

“Part 16” complaint proceeding that the City had unjustly discriminated against

skydiving in violation of an economic nondiscrimination “assurance” provided to

the FAA in connection with the City’s receipt of a federal Airport Improvement

Program (“AIP”) grant. See 49 U.S.C. § 47107(a)(1). Specifically, the City had

rejected Petitioners’ proposal to establish a parachute drop zone (“PDZ”) on the

existing CGZ airfield. The City’s CAP proposes to remedy the noncompliance by

establishing a PDZ on city-owned land 2.9 miles from the existing airfield, then

formally incorporating the non-contiguous parcel within the airport.

We conclude that neither the September 28, 2020 letter nor the August 12,

2020 letter constituted a final, reviewable order by the FAA.1 We thus lack subject

matter jurisdiction to review the underlying dispute.

1. The August 12, 2020 letter states that the FAA “conditionally approves the

City’s CAP and its proposed course of action. The FAA will provide final approval

of the City’s CAP once the five acre parcel supporting a PDZ becomes Federally

1
We also reject Petitioners’ fallback argument that the September 28, 2020 letter is
appealable as an amendment to the FAA’s final decision on the Part 16 complaint,
dated November 19, 2018. The CAP may be different than what Petitioners
envisioned when they prevailed in the Part 16 proceeding, but the CAP does not
contradict the Part 16 remedial order. To the extent the FAA changes its position on
substantive issues, Petitioners may challenge the FAA’s decision to accept the
remote PDZ as arbitrary and capricious when the FAA issues a pertinent final order.
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obligated airport property.” The August 12 letter identifies numerous additional

steps that the City, the FAA, and other entities must take before the CAP will qualify

for final approval.2 The letter closes by noting that the City’s return to eligibility for

FAA grants is contingent upon final approval of the PDZ, and thus final resolution

of the Part 16 proceeding.

On September 18, 2020, the City responded to the FAA, seeking clarification

of 10 additional, enumerated requirements that the August 12 letter had placed on

the FAA’s conditional approval. The City’s September 18 response stated, inter alia,

that the PDZ was open as of August 15 and that there were, “[a]s of now, . . . no fees

associated” with its use. On September 28, 2020, the FAA responded with a one-

paragraph letter, clarifying one of the enumerated requirements and stating that it

found the City’s “responses to the other nine issues to be acceptable.”

3. The petition for review was filed pursuant to 49 U.S.C. § 46110(a), which

provides this court with subject matter jurisdiction to review an “order” issued by

the FAA. Section 46110 incorporates generally applicable finality principles into the

2
The letter also notes additional steps the City may have to take, including an
environmental review process, City Council approval, deeding over the land, public
hearings and approvals of land use changes and site plans by City boards and
commissions, and mitigation of hazards on or near the proposed PDZ. The letter also
recognizes that the City will have to update the Airport Master Plan, which the FAA
must approve along with an updated Airport Layout Plan. Finally, the August 12
letter notes that the City sought to “procure a consultant to perform analyses to assure
that the PDZ location does not impact the existing airspace and flight patterns.”
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analysis of what counts as an “order” subject to judicial review. S. Cal. Aerial

Advertisers’ Ass’n v. FAA, 881 F.2d 672, 675 (9th Cir. 1989).3

4. We conclude that the September 28 and August 12 letters lack finality and

therefore are not “order[s]” of the FAA susceptible to judicial review under section

46110. Bennett v. Spear, 520 U.S. 154 (1997), sets forth the two-part test for whether

an agency action is “final” and thus whether we have subject matter jurisdiction.

“First, the action must mark the ‘consummation’ of the agency’s

decisionmaking process—it must not be of a merely tentative or interlocutory

nature.” Id. at 177–78. Petitioners dismiss the remaining steps as “ministerial” and

argue that the September 28 letter represented the consummation of the FAA’s

decision-making with respect to the issue upon which they seek review: whether the

City could return to compliance with Grant Assurance 22 by establishing a PDZ on

a non-contiguous parcel and incorporating it within the formal airport boundary. We

disagree. The September 28 letter is a quintessential “interlocutory” document. It

merely clarifies certain requirements on the August 12 “conditional approval,”

which itself acknowledged numerous steps that the City would have to take before

the FAA would be in a position to give the CAP final approval and thus to terminate

the Part 16 proceeding.

3
Unless otherwise specified, all internal quotation marks, alterations,
emphases, elisions, and citations are omitted from all sources cited herein.
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The second condition for finality is that the “action must be one by which

rights or obligations have been determined, or from which legal consequences will

flow.” Id. at 178. An agency action fails this second prong of Bennett where it merely

“expresse[s] its view of what the law requires of [a regulated entity] without altering

or otherwise fixing its legal relationship.” Fairbanks N. Star Borough v. U.S. Army

Corps of Engineers, 543 F.3d 586, 594 (9th Cir. 2008). The September 28 letter does

not even express a view of what the law requires, let alone alter the City’s (or

Petitioners’) legal relationships. While the August 12 letter expresses the FAA’s

view that successful incorporation of a remote PDZ facility into the airport would

resolve the City’s noncompliance with its grant assurances, it does not bind the FAA

to accept the remote PDZ, resolve the City’s noncompliance, or terminate the Part

16 proceeding and return the City to AIP grant eligibility. The August 12 letter’s

“expression of views [therefore] lacks the status of law or comparable legal force.”

Id.

PETITION DENIED.