714 F.3d 90
2d Cir.2013Background
- LaGuardia on Flushing Bay; North Shore Marine Transfer Station proposed adjacent to runway 31; FAA conducted aeronautical studies in 2006 and 2008 finding No Hazard; a wildlife hazard assessment and a 2011 Port Authority report followed; a September 2, 2010 FAA panel report urged adoption of wildlife-mitigation recommendations; Petitioners seek review of the FAA Letter endorsing the panel’s recommendations; district court disposition dismissed for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FAA Letter is a final order under §46110(a). | Paskar contends the Letter constitutes a final order. | FAA argues the Letter is not a final order. | No; the Letter does not impose rights or obligations. |
| Whether the Letter’s status can be treated as a final agency action under finality tests. | Petitioners rely on cases treating related FAA determinations as final. | FAA relies on New York v. FAA and no finality. | Letter lacks compulsory effect and legal consequences. |
| Whether the Fifth Circuit moral suasion test could render the Letter reviewable. | If applied, the Letter could have moral suasion status prompting review. | Moral suasion is not applicable here. | Even under moral suasion, no final order results. |
Key Cases Cited
- New York v. FAA, 712 F.2d 806 (2d Cir. 1983) (final order reviewability under §46110 requires finality and legal consequences)
- Bennett v. Spear, 520 U.S. 154 (Supreme Court 1997) (two-part finality test for agency actions)
- Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103 (Supreme Court 1948) (finality and binding legal consequences)
- Aircraft Owners & Pilots Ass’n v. FAA, 600 F.2d 965 (D.C. Cir. 1979) (Hazard/No Hazard determinations and decision effects)
- Air California v. United States Dep’t of Transp., 654 F.2d 616 (9th Cir. 1981) (FAA letter not a final order despite procedural threats)