Paskar v. USDOT

• Court: Court of Appeals for the Second Circuit
• Decided: April 10, 2013
• Docket: 10-4612-ag
• Status: Published

Opinion

10-4612-ag Paskar v. USDOT

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2011

(Argued: January 6, 2012 Decided: April 9, 2013 Corrected April 10, 2013)

Docket No. 10-4612-ag

____________________

KENNETH D. PASKAR AND FRIENDS OF LAGUARDIA AIRPORT, INC.,

Petitioners,

v.

UNITED STATES DEPARTMENT OF TRANSPORTATION; RAY LAHOOD, SECRETARY OF TRANSPORTATION; FEDERAL AVIATION ADMINISTRATION; AND J. RANDOLPH BABBIT, ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION,

Respondents,

CITY OF NEW YORK,

Intervenor Respondent.

Before: HALL and CHIN, Circuit Judges, and HELLERSTEIN, Senior District Judge.*

Petitioners Kenneth Paskar and Friends of LaGuardia Airport, Inc., seek review of

a September 2, 2010, letter written by the Federal Aviation Administration pursuant to 49 U.S.C.

* The Honorable Alvin K. Hellerstein, Senior District Judge for the U.S. District Court for the Southern District of New York, sitting by designation. -1- § 46110. The letter endorsed a series of recommendations made by a panel of experts regarding

the impact of a proposed marine trash-transfer facility on safe airport operations at LaGuardia

Airport. We hold that the letter does not constitute a final order reviewable by this Court. We

DISMISS the petition for lack of jurisdiction.

RANDY M. MASTRO, J. Ross Wallin, Gibson, Dunn & Crutcher LLP, New York, New York; Steven M. Taber, Taber Law Group, Irvine, California, for Petitioners.

ROBERT S. RIVKIN, General Counsel, Paul M. Geier, Assistant General Counsel, Joy Park, Trial Attorney, Department of Transportation; Daphne Fuller, Assistant Chief Counsel, Elizabeth Newman, Attorney Advisor, Federal Aviation Administration; Tony West, Assistant Attorney General, Michael Jay Singer, Abby C. Wright, Department of Justice, Washington, D.C., for Respondents.

MICHAEL A. CARDOZO (Leonard Koerner, Christopher Gene King, Elizabeth S. Natrella, Amy McCamphill, on the brief), Corporation Counsel of the City of New York, New York, New York, for Intervenor Respondent.

Hellerstein, Senior District Judge:

Petitioners seek review of a letter written by the Federal Aviation Administration

(“FAA”) to the City of New York (“City”) on September 2, 2010 (the “Letter”). Petitioners

contend the Letter is a “final order” subject to review by this Court. The Letter states that the

FAA agrees with an expert panel’s finding that the City’s plan to reopen a coastal garbage

transfer facility in College Point, Queens, would be compatible with safe air operations as long

as several recommendations are followed. The facility, the North Shore Marine Transfer Station

(“Station”), is 2,206 feet across Flushing Bay from the landing threshold of Runway 31 at

-2- LaGuardia Airport and 585 feet perpendicular to its extended centerline. We hold that, because

the Letter is not a “final order” for purposes of 49 U.S.C. § 46110(a), we are without jurisdiction

to review it. The petition for review is therefore dismissed.

I. Factual Background

LaGuardia Airport is located on the western shore of Flushing Bay, on the side

closer to Manhattan. Flushing Bay is a natural habitat for waterfowl, including large birds like

gulls who shelter in its wetlands and feed on the fish and shellfish in its tides and mudflats. Since

these birds flock and soar, they may present a danger to the aircraft that take off and land at

LaGuardia. Thus, over the years the owner of the airport, the Port Authority of New York and

New Jersey, conducted studies of the habitat of these birds in an effort to control their population

and minimize the danger they present to aircraft and the public. In 2000, the Port Authority, with

assistance from the U.S. Department of Agriculture’s (“USDA”) Wildlife Services, conducted a

year-long wildlife hazard assessment, culminating in the creation of a wildlife hazard

management plan in 2002. Its studies, continued in the years that followed, and updates and

modifications to its plan, were published from time to time. In 2009-2010, again with the

assistance of Wildlife Services, the Port Authority conducted another year-long wildlife hazard

assessment and issued its report on March 3, 2011, with a number of recommendations to

mitigate the effects of wildlife on the airport’s operations.

The Port Authority conducted these wildlife hazard assessments pursuant to

federal regulations requiring airports holding a federal certificate to “take immediate action to

alleviate wildlife hazards whenever they are detected.” 14 C.F.R. § 139.337(a), (b). Airports are

required to conduct a “wildlife hazard assessment” and submit their report to the FAA when

3 certain triggering events occur, such as multiple wildlife strikes or an engine ingestion of

wildlife. The FAA can then order the airport to develop a “wildlife hazard management plan,” to

“[p]rovide measures to alleviate or eliminate wildlife hazards to air carrier operations.” 14 C.F.R.

§ 139.337(d), (e). The plan is required to prioritize wildlife population management, habitat

modification, and land use changes, and be reevaluated at least every 12 months. 14 C.F.R. §

139.337(f)(2) and (f)(6). If the FAA determines that the airport is not meeting its obligations and

endangering air safety, the FAA can amend, modify, suspend, or revoke the airport’s certificate.

49 U.S.C. § 44709(c).

In 2006, the New York City Department of Sanitation issued a Comprehensive

Solid Waste Management Plan, to reduce pollution and deal more efficiently and economically

with the 50,000 tons of garbage and recyclables that it collects each day. A central part of the

plan proposed to reopen four shuttered marine trash-transfer stations on New York City

waterways. Garbage would be trucked to the stations and loaded into sealed containers and onto

barges for marine transfer to other collection points or final disposal sites. One of these stations

is the North Shore Marine Transfer Station in College Point, Queens, on the shore of Flushing

Bay, across an inlet from LaGuardia Airport.1 The City proposed a three-level, fully enclosed

facility operating under negative air pressure to contain smells of refuse within the structure and

reduce attractions to birds to a minimum. Trash trucks were to drive into the facility through

high-speed roll-up doors, dump their loads into watertight, leak-proof containers, and exit

1 The North Shore Station was operated by the New York City Department of Sanitation between 1954 and 2001, and was then closed. The other three proposed renovated facilities are located on New York Bay in Brooklyn and on the East River at the terminus of East 91st Street in Manhattan. 4 through another set of such doors. The sealed and loaded containers were then to be transported

via waterway to their destinations.

Upon a determination by the Secretary of Transportation that a proposed structure

“may result in an obstruction of the navigable airspace or an interference with air navigation

facilities and equipment or the navigable airspace, the Secretary shall conduct an aeronautical

study to decide the extent of any adverse impact on the safe and efficient use of the airspace,

facilities, or equipment.” 49 U.S.C. § 44718(b). The Secretary has delegated to the FAA the

responsibility of conducting such studies, and of determining if the proposed construction or

“alteration of an existing structure,” creates a hazard to air navigation. 14 C.F.R. §§ 77.29(a),

77.31(a). In reaching a Hazard or No Hazard determination, seven criteria are considered,

including “the impact of a proposed structure . . . on aeronautical operations, procedures, and the

safety of flight,” “[a]irport traffic capacity,” “[m]inimum obstacle clearance altitudes,” and “the

potential effect on ATC radar.”2 14 C.F.R. § 77.29(a).

2 (a) The FAA conducts an aeronautical study to determine the impact of a proposed structure, an existing structure that has not yet been studied by the FAA, or an alteration of an existing structure, on aeronautical operations, procedures, and the safety of flight. These studies include evaluating: (1) The impact on arrival, departure, and en route procedures for aircraft operating under visual flight rules; (2) The impact on arrival, departure, and en route procedures for aircraft operating under instrument flight rules; (3) The impact on existing and planned public use airports; (4) Airport traffic capacity of existing public use airports and public use airport development plans received before the issuance of the final determination; (5) Minimum obstacle clearance altitudes, minimum instrument flight rules altitudes, approved or planned instrument approach procedures, and departure procedures; (6) The potential effect on ATC radar, direction finders, ATC tower line-of-sight visibility, and physical or electromagnetic effects on air navigation, communication facilities, and other surveillance systems; 5 The proposed North Shore Station was the subject of two FAA-conducted

aeronautical studies, in 2006 and 2008. Both resulted in findings of “No Hazard.” On September

18, 2006, after its first study, the FAA determined that the proposed 110-foot-high facility

“would have no substantial adverse effect on air navigation” provided it was equipped with the

proper lights. The FAA added, however, that while the structure would not be a hazard, its

location in LaGuardia’s “runway protection zone” was “strongly discouraged in the interest of

protecting people and property on the ground.”3

The Port Authority, the owner of LaGuardia Airport, objected and petitioned the

FAA for discretionary review. 14 C.F.R. § 77.37. In response, the City redesigned the proposed

Station, lowering its height to 100 feet and moving it out of the runway protection zone. The Port

Authority accepted the changes and withdrew its petition for review. Thus, the FAA’s

determination of No Hazard became final.

The alteration in the City’s designs gave rise to a second FAA-conducted

aeronautical study. Again, on September 19, 2008, the FAA issued a No Hazard determination,

finding that “the structure would have no substantial adverse effect on the safe and efficient

utilization of the navigable airspace by aircraft or on the operation of air navigation facilities,”

provided that it was equipped with proper lighting.4 The FAA added that if the height of the

proposed structure were to exceed 100 feet, that would result in a Hazard determination.

(7) The aeronautical effects resulting from the cumulative impact of a proposed construction or alteration of a structure when combined with the effects of other existing or proposed structures. 14 C.F.R. § 77.29(a). 3 We granted petitioner’s motion to take judicial notice of the 2006 and 2008 proceedings. 4 See note 3. 6 Four months after the second No Hazard determination, U.S. Airways Flight

1549, taking off from LaGuardia Airport, flew into a flock of Canada Geese. The airplane’s jet

engines ingested several of the geese and stalled at an altitude of less than 3000 feet. The pilot,

Capt. Chesley B. Sullenberger, and co-pilot, First Officer Jeffrey B. Skiles, ditched the aircraft in

the Hudson River, and all passengers and crew were saved.5 In the wake of the incident, on

March 4, 2009, Queens County Congressman Gary Ackerman and other members of New

York’s congressional delegation wrote to FAA Acting Administrator Lynne Osmus, expressing

concern that birds might be “eagerly gathering about and circling above” the proposed Station.

The FAA responded, assuring that the Station would be safe, as it complied with FAA Advisory

Circular 150/5200-33B. The Circular states, “Enclosed waste-handling facilities [that follow

certain procedures] generally are compatible with safe airport operations, provided they are not

located on airport property or within the Runway Protection Zone.” However, the Congressmen

were not assuaged.

In the fall of 2009 Secretary of Transportation Ray LaHood appointed a panel of

experts from the FAA, USDA, U.S. Air Force, Port Authority, City, and an independent

consulting firm, to “study the impact of the proposed [Station] on safe airport operations at

LaGuardia Airport.”6 The blue ribbon panel reviewed current and historical wildlife data and

surveys, including a history of bird strikes at LaGuardia Airport. It observed and studied the

habits of birds near the proposed Station and at other operational trash transfer stations in the

City, most particularly at the Staten Island Transfer Station, which has a similar building design

5 See National Transportation Safety Board, Aircraft Accident Report 10/03, PB2010-910403. 7 and is in an area with a large gull population. The panel examined the design plans and

operational parameters of the North Shore Station and conducted risk assessments of three

different alternatives: no facility, the facility as planned, and the facility with wildlife mitigation

measures in place. A draft report was issued, and comments from the public were solicited.

On September 2, 2010, the panel of experts issued its report.7 The panel found

that “changes to the building design, adherence to strict operational procedures, and the

development and implementation of an integrated wildlife hazard management plan and program

can reduce the hazards to aviation safety posed by birds attracted to the proposed facility.” The

panel concluded that its recommendations would “achieve compatibility between the [Station]

and LaGuardia Airport with respect to bird strikes and safe air operations” and “greatly reduce

the risk of a bird strike as compared to the present situation.”

The FAA sent its report to the New York City Department of Sanitation, with a

one-page cover letter dated the day the report was released, September 2, 2010. The Letter states,

“The report concludes the proposed [North Shore Station] will be compatible with safe air

operations so long as it is constructed and operated in accordance with the report’s

recommendations.”8 The Letter explains that the FAA reviewed the report and believed “the

6 The authority to initiate the study derives from the Secretary’s general powers, which allow him to “make reports,” “conduct . . . studies,” and “perform other acts the Secretary considers appropriate.” 49 U.S.C. § 31133(a). 7 Evaluation of the North Shore Marine Transfer Station and Its Compatibility with Respect to Bird Strikes and Safe Airport Operations at LaGuardia Airport, August 2010. 8 The full body of the Letter reads:

Last year, following the forced landing of U.S. Airways Flight 1549 in the Hudson River, Secretary LaHood requested that an expert technical panel reexamine whether the proposed North Shore Marine Transfer Station (MTS) in College Point, Queens, would be compatible with safe operations at LaGuardia 8 technical panel’s approach to the issue presented was appropriate and its analysis and

conclusions are sound. We believe it is important for the [C]ity to adopt the recommendations of

the panel and we appreciate your undertaking to adopt them in full, and we urge you to commit

to implementing the recommendations in full.” The City responded that it accepted the

recommendations and was proceeding with construction of the facility as recommended by the

FAA.

II. Procedural History

Petitioners in this case, a general aviation pilot and a not-for-profit corporation

interested in the safety of aviation, filed this petition for review on October 29, 2010, seeking

Airport. We were fortunate to be able to assemble a true "blue ribbon" panel, including experts in bird strike hazards from the United States Air Force, the Federal Aviation Administration, the United States Department of Agriculture, the city of New York, and the Port Authority of New York and New Jersey.

The panel issued its final report, "Evaluation of the North Shore Marine Transfer Station and its Compatibility with Respect to Bird Strikes and Safe Air Operations at LaGuardia Airport," on September 2. The report concludes the proposed MTS will be compatible with safe air operations so long as it is constructed and operated in accordance with the report's recommendations.

The FAA has reviewed the final report. We believe the technical panel's approach to the issue presented was appropriate and its analysis and conclusions are sound. We believe it is important for the city to adopt the recommendations of the panel and we appreciate your undertaking to adopt them in full, and we urge you to commit to implementing the recommendations in full.

Secretary LaHood and the FAA appreciate your cooperation with the work of the technical panel. We look forward to working with you to protect the safety of the region's airports.

FAA Director of Airport Safety and Standards, Michael J. O’Donnell, to Harry Szarpanski, Deputy Commissioner of NYC Department of Sanitation, Sep. 2, 2010. 9 review by this Court of the September 2, 2010, Letter from the FAA to New York City.9

Petitioners alleged that they had a substantial interest in the Letter’s subject matter, that the

Letter was a final order reviewable by this Court, and that it was arbitrary and capricious. If the

court has jurisdiction, we may “amend, modify, or set aside any part of the order.” 49 U.S.C.

§ 46110(c).

On January 7, 2011, Respondents moved to dismiss the petition on the ground

that the Letter was not an “order,” and that the court of appeals therefore lacks subject matter

jurisdiction to hear the petition. On April 6, 2011, a motions panel of this Court denied the

motion to dismiss, holding that the Letter was an order subject to review pursuant to the

provisions of 49 U.S.C. § 46110. Motion Order Denying Respondents’ Motion to Dismiss,

Paskar v. U.S. Dep’t of Transp., No. 10-4612-ag, Docket No. 61, (2d Cir. Apr. 6, 2011).

III. Discussion

a. Revisiting the Motions Panel Decision

A merits panel may revisit a decision made by a motions panel. Rezzonico v. H &

R Block, Inc., 182 F.3d 144, 149 (2d Cir. 1999). “[R]eexamination of a question regarding our

jurisdiction is especially important whenever there is reason to believe that it may be lacking.”

Id.

In denying Respondents’ motion to dismiss, the motions panel found that it had

jurisdiction to review the Letter from the FAA to New York City as a “final order.” In support of

its decision the motions panel cited New York v. FAA, 712 F.2d 806 (2d Cir. 1983), in which the

9 Petitioners also filed suit in New York State Supreme Court to block construction of the Station. On November 28, 2011, their claims were dismissed. Matter of Paskar v. New York State Dept. of Envtl. Conservation, 33 Misc. 3d 1226A (N.Y. Sup. Ct. 2011). 10 FAA refused to amend the operating certificate of the Republic Airport in Suffolk County, New

York, thereby denying New York State the ability to operate the airport. The court held that it

had jurisdiction to review the FAA order because it was a “final order” which “impose[d] an

obligation, denie[d] a right, or fixe[d] some legal relationship” among the interested parties. Id.

at 808. As discussed below, the Letter in this case does not meet these qualifications.

The motions panel also cited City of Rochester v. Bond, 603 F.2d 927, 933 & n.27

(D.C. Cir. 1979), in which the D.C. Circuit held that No Hazard determinations are reviewable

final orders. But, as will be discussed below, the FAA Letter at issue here is not a No Hazard

determination.

Thus, we have cause to reexamine the motions panel’s decision because “there is

reason to believe that [our jurisdiction] may be lacking.” Rezzonico, 182 F.3d at 149.

b. Whether the Letter is a Reviewable Order

This Court has jurisdiction to review the FAA Letter if the Letter is an “order”

within the definition of 49 U.S.C. § 46110(a). Pursuant to § 46110(a), “a person disclosing a

substantial interest in an order” issued by the Administrator of the FAA “may apply for review of

the order by filing a petition for review…in the court of appeals of the United States for the

circuit in which the person resides or has its principal place of business.”10 The Administrative

Procedure Act defines an “order” as “the whole or a part of a final disposition…of an agency in a

matter other than rule making.” 5 U.S.C. § 551(6). Although the term “order” is to be given a

“liberal construction,” “only final orders are reviewable” under § 46110(a). New York v. FAA,

10 We assume without deciding that petitioners, a pilot who flies in and out of LaGuardia Airport and a not-for-profit corporation concerned with air safety at LaGuardia, have a “substantial interest” in this matter. 11 712 F.2d at 808 (citing McManus v. CAB, 286 F.2d 414, 417 (2d Cir.), cert. denied, 366 U.S. 928

(1961)). A “final order” is one that “imposes an obligation, denies a right, or fixes some legal

relationship.” New York v. FAA, 712 F.2d at 808 (internal quotation marks omitted). A “final

order” must satisfy two criteria: the agency action must mark the “consummation of the agency’s

decisionmaking process,” and the action “must be one by which rights or obligations have been

determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-

78 (1997) (citing Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113

(1948), and Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S.

62, 71 (1970)) (internal quotation marks omitted). The Letter from the FAA to the City of New

York does not satisfy these criteria.

No term in the Letter “imposes an obligation” on the City, “denies a right” of the

City, or “fixes some legal relationship” with the City. New York v. FAA, 712 F.2d at 808. The

Letter “urge[d]” the City to implement the panel report’s recommendations and expressed the

sentiment that the recommendations are “important for the city to adopt.” However, there is

nothing in the Letter that commands the City to stop, change, or continue construction of the

North Shore Station. A letter advising the City to follow safety recommendations, without more,

hardly “fixes a legal relationship.” The City could have accepted or rejected the FAA’s

recommendations without recourse by any party. Petitioners do not contest this point, and have

presented no authority that holds otherwise. Although the City accepted the panel’s

recommendation to adopt certain wildlife hazard mitigation measures, including removing ledges

on which birds like to perch, the City did not have to do so. The FAA could not have required the

City to alter its designs of the Station, nor denied the City’s right to build it, nor imposed an

12 obligation to institute wildlife management procedures. Aircraft Owners & Pilots Ass’n v. FAA,

600 F.2d 965, 967 (D.C. Cir. 1979). Indeed, “[t]he FAA is not empowered to prohibit or limit

proposed construction it deems dangerous to air navigation.” Id.

We recognize that other circuits have held that a letter may be a reviewable final

agency action, provided, of course, that the letter imposes tangible, definite, and immediate legal

consequences. See, e.g., San Diego Air Sports Ctr., Inc. v. FAA, 887 F.2d 966, 970 (9th Cir.

1989) (holding that a letter banning parachuting near San Diego airport was a final order because

it created an “immediate, substantive rule”); Air One Helicopter, Inc. v. FAA, 86 F.3d 880, 882

(9th Cir. 1996) (holding that an FAA letter denying Air One the right to register its helicopter in

the United States was a final order because “it would be futile for Air One to attempt to persuade

the FAA to change the position it clearly sets forth” in the letter and federal law requires

helicopters register with the FAA); S. Cal. Aerial Advertisers’ Ass’n v. FAA, 881 F.2d 672, 677

(9th Cir. 1989) (holding that a letter from an FAA official banning fixed-wing aircraft travel

through shoreline area was final agency action because it was a “definitive statement of the

FAA’s position that had a direct and immediate effect on petitioner’s members and that carried

an expectation of immediate compliance”). The Letter here had no such fixed consequences for

the City of New York, for it imposed no obligation, denied no right, and fixed no legal

relationship. See Red River Transp. & Dev. Co., Inc. v. FAA, 630 F.2d 592, 594 (8th Cir. 1980)

(holding that FAA letter directing air freight company to comply with regulations regarding ice

protection equipment on planes was not a final order because the letter was “tentative [in]

nature” and administrative remedies regarding request to comply had not been exhausted).

13 This case is similar to Air California v. United States Dep’t of Transp., 654 F.2d

616 (9th Cir. 1981), in which the Ninth Circuit held that a letter from the FAA’s chief counsel

did not constitute a reviewable order because it lacked requisites of finality. In that case, in an

effort to reduce noise near the Orange County Airport, the Orange County Board of Supervisors

limited the number of airline carriers permitted to fly into the airport. In response to the

complaints of disappointed competitors, the FAA issued a report concluding that denying other

airlines access to the airport violated FAA-administered, federal statutes. The report also

contained a number of suggestions for reducing noise around the airport. The FAA’s chief

counsel sent a letter to the Board of Supervisors endorsing the report and noting that failure to

negotiate with new airline carriers would “warrant [the FAA’s] pursuance of contractual,

injunctive, and civil penalty remedies.” Id. at 618 (internal quotation marks omitted). Despite the

fact that the letter threatened to impose penalties and suggested that the FAA might withhold

federal funding from the airport for continued noncompliance, the Ninth Circuit held that the

letter was not a final order because it was “neither a definitive statement of the agency’s position

nor a document with the status of law.” Id. at 620. “The letter did not specify the exact form that

compliance would take….” Id. Although the Board of Supervisors ultimately agreed with the

FAA, the court noted that the Board could have challenged the FAA in subsequent enforcement

actions. Thus, the letter did not “impose an obligation, deny a right, or fix some legal

relationship.” Id. at 621.

Petitioners argue that the Letter had a “substantial practical impact,” imposing a

de facto obligation on the City. In Aircraft Owners, the D.C. Circuit held that it had jurisdiction

to review the FAA’s determination that a television antenna tower proposed to be built near three

14 Virginia airports posed “No Hazard” to air navigation. In that case, the FAA had found that the

antenna tower would not constitute an “obstruction of the navigable airspace or an interference

with air navigation facilities and equipment or the navigable airspace.” 49 U.S.C. § 44718(b).

The D.C. Circuit held that it had jurisdiction to review the FAA order. The FAA’s Hazard/No

Hazard determination as to the television antenna tower would affect the decision of another

agency, the Federal Communications Commission, whether or not to issue a permit necessary for

the tower’s construction. Since the FAA’s determination had this “substantial practical impact,”

it had sufficient legal force for the D.C. Circuit to hold that it was a final order that it could

review. Aircraft Owners, 600 F.2d at 966-67. See also Town of Barnstable v. FAA, 659 F.3d 28,

32 (D.C. Cir. 2011) (FAA No Hazard determination was prerequisite for obtaining Department

of Interior lease to an offshore windfarm). The court of appeals applied the ruling of the U.S.

Supreme Court that an agency action, in order to constitute a “final order,” must be one “by

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

Bennett, 520 U.S. at 178 (internal quotation marks omitted); see also Safe Extensions, Inc. v.

FAA, 509 F.3d 593, 598 (D.C. Cir. 2007) (“To be deemed ‘final’ and thus reviewable as an order

under 49 U.S.C. § 46110, an agency disposition…must determine rights or obligations or give

rise to legal consequences.”).

Whatever the reviewability of a Hazard/No Hazard determination generally, our

task in the case before us is to determine the reviewability of a one-page Letter to the City which

states agreement with the recommendations made in a panel report. The Letter differs from a

Hazard/No Hazard determination in the legal authority which underlies it and in the practical

effect emanating from it. The panel report was commissioned by the Secretary of Transportation

15 pursuant to his general powers, 49 U.S.C. § 31133(a). It was a report of experts appointed from a

number of federal, state, and city agencies. It was not a Hazard/No Hazard determination nor a

wildlife hazard assessment, the two types of FAA proceedings that evaluate potential dangers to

air navigation. See 14 C.F.R. §§ 77.31, 139.337(b). The report followed two FAA aeronautical

studies of the North Shore Station, both concluding in No Hazard determinations, and numerous

wildlife hazard assessments ordered and carried out by the Port Authority and the USDA. The

Letter does not affect any other federal agency, as did the No Hazard determination in Aircraft

Owners, nor “alter the legal regime” to which the City is subject, or affect any permit or lease of

the Station.11 Bennett, 520 U.S. at 178.

c. The Fifth Circuit’s “Moral Suasion” Test

The Fifth Circuit has espoused a “moral suasion” test whereby an order having

sufficient moral force is deemed a reviewable final order. See Air Line Pilots’ Ass’n Int’l v. DOT,

446 F.2d 236, 240-41 (5th Cir. 1971); Menard v. FAA, 548 F.3d 353, 357 (5th Cir. 2008). That is

not the test in the Second Circuit. However, even if we were to apply the “moral suasion” test,

petitioners’ claims would still fail because the FAA Letter did not impose “a practical stumbling

block to the construction” of the North Shore Station and was consistent with the FAA’s two

prior No Hazard determinations. Air Line Pilots, 446 F.2d at 241 (internal quotation marks

omitted). In Air Line Pilots, the FAA determined that the construction of three high-rise

complexes near Love Field, Dallas, posed No Hazard to air navigation. The Fifth Circuit set

aside the No Hazard determination, holding that the determination was reviewable because the

11 The City made the changes to the design and operations of the Transfer Station recommended by the FAA Letter, and asked the New York State Department of Environmental Conservation to 16 “moral suasion” of the Hazard/No Hazard determination would either erect or remove “a

practical stumbling block to the construction of the proposed buildings.” Id. “[A]s a practical

matter, it would unquestionably have been very difficult for the proponents of the proposed

structures to secure financing or obtain insurance on a building that officially had been declared

a ‘hazard to air navigation.’” Id.

In the present case, the FAA Letter does not pose a practical “stumbling block” to

the construction of the North Shore Station. The Letter is not a No Hazard determination. FAA

aeronautical studies in 2006 and 2008 had already determined that the Station posed No Hazard

to air navigation. The panel report was consistent with those determinations, and neither created,

nor removed, a “stumbling block.” Nothing in the recommendations of the panel, or the Letter,

ordered the City to do anything, or to desist from doing anything. No other regulatory agency

awaited the issuance of the panel report, and no financing or insurance was conditioned on the

content of the Letter. To the extent that the Fifth Circuit has announced a definition of a “final

order” inconsistent with our understanding of the term, see New York v. FAA, 712 F.2d at 808,

we decline to follow it.

IV. Conclusion

The FAA letter and inter-agency panel report did not deny a right, impose an

obligation, or have legal consequence. It was not a “final order,” and we lack jurisdiction to

review it. The petition for review is DISMISSED.

reflect the changes in the permit it issued. The changes were not the legal consequence of any order. 17