VILLAGE OF BENSENVILLE, еt al., Petitioners v. FEDERAL AVIATION ADMINISTRATION, Respondent City of Chicago, Intervenor for Respondent.
No. 05-1383.
United States Court of Appeals, District of Columbia Circuit.
Argued May 5, 2006. Decided Aug. 4, 2006.
457 F.3d 52
The Board‘s findings are not “supported by substantial evidence on the record considered as a whole.” See
III.
For the foregoing reasons, we grant Point Park‘s petition for review, deny without prejudice the Board‘s cross-application for enforcement, and remand the case to the Board for proceedings consistent with this opinion.
So ordered.
Robert L. Greene was on the brief for amici curiae Advocates for Faith and Freedom, et al. in support of petitioners.
Mary A. Thurston, Attorney, U.S. Department of Justice, argued the cause for respondent. With her on the brief were
Benna Ruth Solomon argued the cause for intervenor. With her on the brief were Suzanne M. Loose, Sean H. Donahue, Michael G. Schneiderman, and David T. Goldberg.
Before: HENDERSON, ROGERS and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
Opinion concurring in part and dissenting in part filed by Circuit Judge GRIFFITH.
ROGERS, Circuit Judge.
The principal issue in this appeal is whether the Religious Freedom Restoration Act (“RFRA“),
We hold that any burden on the exercise of religion caused by the City‘s airport expansion plan is not fairly attributable to the FAA. The Supreme Court has recognized that even in instances in which the federal government plays some role, constitutional standards do not attach to conduct by third parties in which the federal government merely acquiesces. So too, a federal agency‘s determination that a City‘s expansion plan is eligible for federal funding does not render the City‘s implementation of the plan tantamount to federal action that is the source of the burden on the free exercise of religion. The expansion plan for the airport, which is owned by the City, was prepared and will be implemented by the City, which is prepared to proceed without federal funds if necessary, and RFRA does not apply to burdens imposed by states or their subdivisions. Hence, the court need not reach the quеstion whether the FAA has shown a compelling governmental interest in imposing a burden on the free exercise of religion.
Additionally, the court lacks jurisdiction to consider the petitioners’ challenge to the FAA letter expressing a non-binding intention to obligate federal funding for the expansion because the letter is not a final order. Accordingly, because the petitioners’ remaining contentions are without merit, we deny the petitions for review.
I.
A.
The Airport and Airway Improvement Act,
To establish a “safe, efficient, and integrated system of public-use airports,” the Secretary of Transportation must maintain a public airport development plan that includes the “kind and estimated cost of eligible airport development.”
In addition to the statutory requirements for specific projects, a grant application may not be approved unless the airport itself operates according to certain standards. See
Once an airport owner has an approved ALP, it may apply for a Letter of Intent (“LOI“) to provide AAIA funding for the project. Upon such application, the FAA “may issue a letter of intent to the sponsor stating an intention to obligate from future budget authority an amount.”
B.
In December 2002, the City, which owns and operates O‘Hare, submitted for FAA review an ALP designed to increase capacity and decrease costly delays that were interfering with O‘Hare‘s role as a major connecting hub. The City‘s plan called for realigning three of the seven existing runways and adding an eighth runway. To accomplish the expansion, the plan would require the City to acquire 440 acres of adjacent property, including businesses and homes in the neighboring Villages of Bensenville and Elk Grove. Further, the plan would require relocation of two cemeteries: St. Johannes and Rest Haven.
Members of St. Johannes Church and descendants of those buried at the cemeteries objected that the relocation of the cemeteries would substantially burden their exercise of religion because of their belief in the physical resurrection of the bodies of Christian believers. Citing their rights under RFRA, they asked the FAA to demonstrate that Alternative C was the least restrictive means of meeting the government‘s compelling interests in reducing delay and enhancing capacity. Although expressing uncertainty over whether it was required to comply with RFRA in this instance because the City was ultimately responsible for designing and implementing the expansion plan, the FAA proceeded as if RFRA did apply in order to avoid litigation over the project. It found that the religious practices of some petitioners would be substantially burdened if the cemeteries were acquired and the bodies were relocated by the City. It concluded—after examining the petitioners’ proposals for avoiding the relocation of the cemeteries, each of which the FAA characterized as derivative of the no-build and limited build alternatives it had already considered and rejected, and examining derivatives of its own that would limit effects on the cemeteries, each of which the FAA determined posed significant difficulties that would interfere with the goal of reducing delays—that Rest Haven Cemetery could remain at its current location by repositioning certain cargo facilities.
Therefore, in the final EIS, the FAA proposed to conclude that Alternative C, as modified to protect Rest Haven Cemetery, was the least restrictive means of achieving the federal government‘s compelling interest in increasing capacity and reducing delay. After receiving additional comments, the FAA reviewed the conclusions of the EIS in the Record of Decision (“ROD“) and concluded that the approval of Alternative C as modified satisfied RFRA because “it clearly performs so much better than any other alternative.” The issuance of the ROD on September 30, 2005 cleared the way for the City to implement its plan without relocating Rest Haven Cemetery. Additionally, in response to the City‘s February 15, 2005 request for a LOI for $300 million of Airport Improvement Program (“AIP“) funds and $55.8 million of entitlement funds to go toward the first construction the City would be doing to implement the ALP, the FAA, upon making statutory findings, on November 21, 2005 issued a LOI expressing its intention to fund about $300 million in discretionary funds and $37.2 million in entitlement funds over a 15-year period. These petitions for review followed.
II.
The petitioners’ central challenge to the FAA‘s approval of the City‘s ALP depends upon RFRA. In 1990, the Supreme Court held in Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), that the Free Exercise Clause of the First Amendment to the Constitution does not prohibit burdens on the exer-
RFRA provides that “Government shall not substantially burden a person‘s exercise of religion,”
As the FAA is undeniably an “agency ... of the United States,”
To determine whether the burden on religious exercise can be properly attributed to the FAA, the petitioners suggest that the court look to the fact that the FAA‘s role in approving the ALP constitutes a “major Federal action[]” for purposes of NEPA.
This approach has some facial appeal. In aviation, as in many fields, the federal government plays a significant role. Cf. Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292, 303, 64 S.Ct. 950, 88 L.Ed. 1283 (1944). The Illinois legislature noted as much when endorsing the O‘Hare expansion plan in “recogniz[ing] that ... the planning, construction, and use of the O‘Hare Modernization Program will be subject to intensive regulatory scrutiny by the United States and that no purpose would be served by duplicative or redundant regulation of the safety and impacts of the airрort or the O‘Hare Modernization Program.”
Although RFRA speaks broadly of “government,” with RFRA Congress intended to “restore” the standard by which federal government actions burdening religion were to be judged, see
RFRA was enacted to reestablish a constitutional test with the expectation that courts would look to constitutional precedent for guidance. See S. REP. NO. 103-111, at 8, as reprinted in 1993 U.S.C.C.A.N. at 1898. The petitioners can point to no indication of a contrary expectation and we have found none. Given that background, it is not surprising then that the proper inquiry is one classically reserved for constitutional jurisprudence. Whether the federal government can be characterized as responsible for the relocation of St. Johannes Cemetery under RFRA requires the same analysis normally necessary to determine whether the FAA could be held responsible for an alleged infringement of constitutional rights. Cf. Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982). Modified to apply to this inquiry, the question the court must decide is whether “there is a sufficiently close nexus between the [federal government] and the challenged action of [the City] so that the action of the latter may be fairly treated as that of the [federal government] itself.” Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)). “The purpose of this requirement,” the Supreme Court exрlains, “is to assure that constitutional standards are invoked only when it can be said that the State [here, the FAA] is responsible for the specific conduct of which the plaintiff complains.”
This case presents an unusual state action question because the regulated party is a separate sovereign rather than a private entity. Despite the rarity of this situation (inasmuch as federal and state governments are generally bound by the same constitutional standards), the analysis proceeds with the same “necessarily fact-bound inquiry,” Lugar v. Edmondson Oil Co., 457 U.S. 922, 939, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), as if the federal government were regulating the decision of a private entity, with the City standing in the place of a private party. See, e.g., Kitchens v. Bowen, 825 F.2d 1337 (9th Cir. 1987), cert. denied, 485 U.S. 934, 108 S.Ct. 1109, 99 L.Ed.2d 270 (1988).4
In analyzing whether the alleged burden on religious exercise is fairly attributable to the FAA, we “begin[] by identifying ‘the specific conduct of which the plaintiff complains.‘” Am. Mfrs. Mut. Ins. Co., 526 U.S. at 51 (quoting Blum, 457 U.S. at 1004). The specific conduct that the petitioners challenge is the seizure and relocation of St. Johannes Cemetery. Consequently, the court must decide whether the FAA‘s role in the potential disinterment at St. Johannes is “[m]ere approval of or acquiescence in” the City‘s plan or whether the FAA “has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the [FAA].” Blum, 457 U.S. at 1004. Fairly characterizing the level of federal governmental involvement can be accomplished “[o]nly by sifting facts and weighing circumstances.” Moose Lodge, 407 U.S. at 172. “[A]bsent government coercion or significant government encouragement of the measure under inspection,” Lunceford v. Dist. of Columbia Bd. of Educ., 745 F.2d 1577, 1581 (D.C. Cir. 1984), the Supreme Court has held that the federal government may not be held responsible for a measure taken by a private actor.
In Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190 (D.C. Cir. 1991), this court quoted an EIS that described the FAA‘s role in airport develоpment:
In the present system of federalism, the FAA does not determine where to build and develop civilian airports, as an owner/operator. Rather, the FAA facilitates airport development by providing Federal financial assistance, and reviews and approves or disapproves revisions to Airport Layout Plans at Federally funded airports. Id. at 197.
That quotation accurately depicts the FAA‘s involvement here, where it reported that “[t]he FAA did not design the [ALP], nor can it compel the City to implement some or all of it.” If the owner or operator proposing to modify an airport‘s layout wants to qualify for federal funding, certain requirements must be met. Under the AAIA, ALPs must “be in a form the [FAA] prescribes,”
But the FAA‘s peripheral role in the City‘s relocation of St. Johannes is not sufficient to hold the agency responsible for purposes of RFRA. Even under NEPA, “a ‘but for’ causal relationship is insufficient to make an agency responsible for a particular effect.” Dep‘t of Transp. v. Pub. Citizen, 541 U.S. 752, 767, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004). The City—not the FAA—is the cause of any burden on religious exercise becausе of its role as inventor, organizer, patron, and builder of the O‘Hare expansion. The City designed the ALP with its attendant impact on the cemeteries. The City submitted the plan to the FAA to retain O‘Hare‘s eligibility for federal funding. Before the FAA, the City fought for approval of its plan. The City will provide the lion‘s share of the funding for the modernization project; the federal government will cover only twelve percent of the cost of Phase I. The City intends to provide all of the funding through other sources if the federal funds are not forthcoming. And at the
Our dissenting colleague would find that the FAA did more than merely approve the ALP because of its thorough consideration of alternatives pursuant to NEPA. See Dissenting Op. at 76-77. It is true that the FAA was careful in reviewing the harms to the environment and the benefits to the flying public of approving the City‘s plan. But the measured approach the FAA took in approving the City‘s ALP does not make the City‘s plan an action of the federal government. The Supreme Court has never held that the government becomes responsible for the actions of a third party due to the length or intensity of its attention to the actions of the party before approval. Now that the FAA has approved the ALP, the FAA has no authority to demand that the City build the projects describеd therein. Earlier in the process, there is no indication that the FAA “exercised coercive power” or “provided ... significant encouragement,” Blum, 457 U.S. at 1004, that provoked the City to choose a plan that would harm the cemetery. Indeed, the only significant modification to the ALP encouraged by the FAA was the rescue of Rest Haven Cemetery spurred by the FAA‘s assumption that it was bound by RFRA. Had this course of events played out differently, with the FAA ordering the change responsible for the burden or playing some greater role in the design of the ALP, perhaps there might be a valid claim under RFRA. But that level of responsibility is not present here.5
In analyzing cases in which the Supreme Court found no state action in the choices of heavily regulated entities, this court found critical “the interposition of the independent judgment of a private party between the act that allegedly resulted in a constitutional deprivation and the decision of the state to accept that decision and continue funding the private activities.” Kolinske v. Lubbers, 712 F.2d 471, 480 (D.C. Cir. 1983). Here, it was the “conduct of [the City] exercising independent judgment that yielded the contested result.”
Our dissenting colleague errs in concluding that mere approval is sufficient to hold the government responsible for the actions
Similarly, Wilson involved a challenge to a federal governmental decision about what to do with federal land. There, the federal government proposed to allow private interests to develop ski facilities on federal land used for religious practice by several Indian tribes. See Wilson, 708 F.2d at 738. This court merely noted that the “construction approved by the [government] ... will cause the plaintiffs spiritual disquiet.”
That the regulated party here is a government (i.e., a part of a sovereign State,) heightens our hesitancy to apply RFRA‘s compelling interest test. To do so would subject the City‘s airport-building plans to “the most demanding test known to constitutional law.” City of Boerne, 521 U.S. at 534. In this case, state and local governments would again be hampered by RFRA‘s “intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens.”
III.
The petitioners also seek vacation of the Letter of Intent expressing the FAA‘s intention to obligate federal funds to carry out the O‘Hare expansion once the City submits grant applications for approval. The petitioners contend the FAA failed to make essential findings mandated by statute.
To begin, the court must determine whether it has jurisdiction to address a challenge to the LOI. See Citizens for the Abatement of Aircraft Noise v. Metro. Wash. Airports Auth., 917 F.2d 48, 53 (D.C. Cir. 1990). Section 46110(a) of the AAIA provides that “a person disclosing a substantial interest in an order issued by the Secretary of Transportation ... in whole or in part under ... part B ... may apply for review of the order by filing a petition in [this court].” A LOI is issued under Part B. See
Few courts have had the opportunity to address what constitutes an “order” under § 46110(a), but many, including this one, see City of Rochester v. Bond, 603 F.2d 927, 932-33 (D.C. Cir. 1979), have interpreted the statutory section‘s predecessor,
As a general matter, two conditions must be satisfied for agency action to be “final“: First, the action must mark the “consummation” of the agency‘s decisionmaking process, Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 92 L.Ed. 568 (1948)—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,” Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970). Bennett v. Spear, 520 U.S. 154, 177-178, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997).
Therefore, the outcome of this inquiry depends upon the place of the LOI in the FAA‘s decisionmaking process and upon its precise legal effect.
A LOI is an odd creature of statute that, unlike other more definitive agency decisions, merely “stat[es] an intention to obli-
Moreover, the LOI is non-final because it does not impose an obligation, deny a right, or otherwise fix some legal relationship. See Reliable Automatic Sprinkler Co. v. Consumer Prod. Safety Comm‘n, 324 F.3d 726, 731 (D.C. Cir. 2003). The statutory text is clear in this regard. When asked during oral argument what the LOI meant to the City, counsel for the City helpfully responded that it is a planning tool that enables the City to approach financial partners for private funding for the development plan. Although airports and their financiers may rely on LOIs as planning tools, this provides the court with no basis to conclude that the LOI establishes a right or obligation when the statute explicitly denies that the LOI is an “obligation” or a “commitment.”
Even were the nature of the commitment evidenced by the LOI such that the court could find that it had jurisdiction, the petitioners’ injury is not redressable by a decision vacating the LOI because the O‘Hare ALP would go forward without the LOI funds. “The redressability inquiry poses a simple question: ‘If plaintiffs secured the relief they sought, would it redress their injury?‘” Wilderness Soc. v. Norton, 434 F.3d 584, 590 (D.C. Cir. 2006) (quoting Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1233 (D.C. Cir. 1996)) (alterations omitted). Thus, for purpose of determining the petitioners’ standing, the court must decide whether “the practical consequence of [vacating the LOI] would amount to a significant increase in the likelihood that [the petitioners] would obtain relief that directly redresses the injury suffered.” Utah v. Evans, 536 U.S. 452, 464, 122 S.Ct. 2191, 153 L.Ed.2d 453 (2002). Or in concrete terms, would the City develop O‘Hare as planned without the $337 million in federal funding set forth in the LOI?
The petitioners maintain that the LOI funding is vital because although the major airlines at O‘Hare have agreed to the Phase I business plan, the airlines’ final approval is contingent on the City receiving $300 million in AIP discretionary funds. Indeed, the FAA‘s Inspector General reported, “If the AIP funds are not granted, the City will have to renegotiate approval of Phasе 1 with the airlines.” That same report makes clear, however, that “[i]f any shortfalls in funding or increases in project costs materialize, the City has indicated it plans to make up the funding/cost difference by issuing additional bonds.” The FAA maintains that vacating the LOI would not affect the City‘s ability to complete the project because practically, the LOI funds only represent a tenth of the funding of the Phase I Airfield, and legally, nothing would preclude the City from buying the property and asking for a federal reimbursement grant later. See
Although the City‘s agreement with the major airlines at O‘Hare might require further negotiations were the LOI vacated, renegotiations with the airlines do not create “a significant increase in the likelihood,” Utah v. Evans, 536 U.S. at 464, that the project would be scuttled altogether rather than merely delayed. The relatively minor role of the LOI dollars in funding Phase I of the O‘Hare expansion, the fact that the City could return to the FAA for a grant in a new application, and the existence of alternative sources of funding means that vacating the LOI is unlikely to redress the petitioners’ injury. Therefore, because the petitioners do not satisfy the redressability requirement of Article III standing, the court cannot reach the merits of their challenge to the LOI.
IV.
Finally, the petitioners present a variety of administrative law challenges to the FAA‘s decisionmaking process. They contend that the FAA (1) used stale and unreliable data in a manner arbitrary, capricious, and contrary to law under the Administrative Procedure Act,
A.
“A party seeking to have a court declare an agency action to be arbitrary and capricious carries ‘a heavy burden indeed.‘” Wisconsin Valley Improvement v. FERC, 236 F.3d 738, 745 (D.C. Cir. 2001) (quoting Transmission Access Policy Study Group v. FERC, 225 F.3d 667, 714 (D.C. Cir. 2000)). It must show that the agency has failed to consider relevant factors, see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), has made a clear error in judgment, see
The petitioners contend that the FAA erred in using an unreasonably short period of evaluation to gauge delay savings benefits by ending its evaluation in 2018, just five years after the project‘s planned completion. They maintain that a fivе-year time horizon is at odds with FAA Order 1050.1E, which states that the FAA “usually select[s]” a timeframe lasting until “5 to 10 years after implementation.” Needless to say, a “build out plus five year” timeframe is consistent with an order recommending timeframes “5 to 10 years after implementation.” But the petitioners also contend quite reasonably that a longer timeframe is desirable for a project of this size and note that longer time horizons have been used to assess other airport development projects. They fail to note, however, that the O‘Hare modernization plan will take many years to complete, naturally pushing any useful timeframe far into the future. As it will take eleven years to complete the O‘Hare project, the FAA‘s projection extends sixteen years into the future. The FAA determined that predictions any further along would be of questionable reliability, which would defy the FAA‘S NEPA obligation to determine “reasonably foreseeable” impacts.
The petitioners also contend that the FAA should have used the 2003 rather than the 2002 Terminal Area Forecast (“TAF“) in its computer modeling. Using the more recent forecast, according to the petitioners, would have demonstrated that the ALP was ineffеctive in preventing delays from returning to O‘Hare. The 2002 forecast was the most recent available at the time the FAA began its work. In the ROD, the FAA provided three reasons for relying on the 2002 TAF: its belief in the accuracy of the representation provided by the 2002 forecast, the administrative necessity of cutting off new data at some point, and its ability to take account of the 2003 and 2004 TAF projections by other means. The record demonstrates that the FAA conducted analyses to determine how significantly variations in the 2003 and 2004 TAFs would affect its modeling and that it determined the variations would not affect its conclusions. However desirable it may be for agencies to use the most current and comprehensive data available when making decisions, the FAA has expressed its professional judgment that the later data would not alter its conclusions in the EIS or the approval of Alternative C, and it is reasonably concerned that an unyielding avalanche of information might overwhelm an agency‘s ability to reach a final decision. Cf. W. Coal Traffic League v. ICC, 735 F.2d 1408, 1411 (D.C. Cir. 1984). The method that the FAA chose, creating its models with the best information available when it began its analysis and then checking the assumptions of those models as new information became available, was a reasonable means of balancing those competing considerations, particularly given the many months required to conduct full modeling with new data.
Similarly, there is no merit to the petitioners’ claims that the FAA improperly relied on other outdated information. The petitioners contend that the FAA used outdated airport operating procedures to
The petitioners further contend that the FAA established an unprecedented acceptable delay level of fifteen minutes that made Alternative C appear better than it is at reducing delays. To begin, the petitioners fail to point out where the FAA determines that fifteen minute delays are acceptable. Perhaps the petitioners are referring to the fact that, in comparing the “No Action” alternative to other alternatives, the “No Action” alternative was constrained so as to produce between fifteen and eighteen minutes of delay. The FAA explained that such constraints were necessary to generate comparative operational and environmental impacts. The petitioners present nothing to call this judgment into doubt, and given the deference accorded the FAA in forecasting air transportation demand and capacity, see City of Olmsted Falls v. FAA, 292 F.3d 261, 272 (D.C. Cir. 2002), the court concludes that the FAA was neither arbitrary nor capricious in establishing this baseline.
This litany of arbitrary and capricious challenges is thoroughly rebutted by the FAA, which appears to have acted with great care in conducting its analyses for the EIS and ROD. Without more from the petitioners, the court has no basis to conclude that the FAA‘s methods were less than rational.
B.
Invoking the Fifth Amendment‘s Due Process Clause, the petitioners assert that the FAA denied it a right to a fair hearing in several ways: by creating financial incentives that drive FAA employees and officials to approve runway projects, by employing individuals who formerly worked for the City or its consultants, and by withholding thousands of documents that would help them establish this procedural misconduct. Like the FAA, the court has difficulty responding to these assertions because they are vague and conclusory, and the petitioners’ failure to provide any greater detail in their reply brief suggests the weakness of these claims. Clearly, “administrative decisions made by adjudicators with a pecuniary interest in the results of the proceeding may suffer reversal,” Jonal Corp. v. District of Columbia, 533 F.2d 1192, 1197 (D.C. Cir. 1976) (citing Gibson v. Berryhill, 411 U.S. 564, 579, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973), and Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927)), but what the petitioners describe appears to be a fairly standard performance-based compensation system and the FAA has advised that its bonuses are not directly linked to individual performance or runway approvals. See Respondent‘s Br. at 61-62. As to the claim that some FAA employees formerly worked for the City or its consultants, the petitioners do not identify a single employee who might have such a conflict of interest from prior employment, so the court cannot determine whether their role in FAA decisionmaking was central enough to question the integrity of the process. Both of these claims of employee bias “fall[] far short of demonstrating that the [FAA] had ‘a fixed opinion—a closed mind on the merits of the case.‘” Pharaon v. Bd. of Governors of the Fed. Reserve Sys., 135 F.3d 148, 155 (D.C. Cir. 1998) (quoting Throckmorton v. NTSB, 963 F.2d 441, 445 (D.C. Cir. 1992)) (internal quotation marks omitted). Regardless, “[c]laims of bias must ‘be raised as soon as practicable after a party has reasonable cause to believe that grounds for disqualification exist,‘”
Accordingly, we deny the petitions for review.
GRIFFITH, Circuit Judge, concurring in part and dissenting in part.
Although the Federal Aviation Administration (“FAA“) has conceded that the plan it screened, studied, chose, modified, and approved would substantially burden petitioners’ religious exercise, the majority nevertheless concludes that the FAA‘s involvement in the relocation of St. Johannes Cemetery is “peripheral” and “not sufficient to hold the agency responsible for purposes of RFRA [the Religious Freedom Restoration Act].” Maj. Op at 64-65. The majority reaches this result after an extensive analysis of cases addressing when a party may be treated as a state actor. The majority presses these “state action” cases into service to determine that a federal agency need not consider an individual‘s free exercise rights under RFRA even though it is extensively involved in a state or local project. See Maj. Op. at 62-63 (citing Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 834-35 (9th Cir. 1999) and Hall v. Am. Nat‘l Red Cross, 86 F.3d 919, 921 (9th Cir. 1996)).
RFRA, however, requires an altogether different analysis. By its plain terms, RFRA mandates that we use the free exercise jurisprudence decided before Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), to determine whether the FAA‘s actions burden religious exercise. See
RFRA‘s substantial reach encompasses both the FAA, see
Where the party being challenged is the federal government and the action at issue is the implementation of federal law, RFRA itself tells us how to determine if the federal government has burdened religious exercise: “the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972).”
I am aware of no decision by the Supreme Court or this Court that has declined to apply a free exercise analysis to a government actor extensively involved in the restraint of religious exercise. Indeed, in Sherbert, the landmark case that created the compelling interest test RFRA requires us to follow here, the Supreme Court held even indirect burdens by government can implicate the Free Exercise Clause:
We turn first to the question whether the disqualification for benefits imposes any burden on the free exercise of appellant‘s religion. We think it is clear that it does.... For “if the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect.” Id. at 403-404 (quoting Braunfeld v. Brown, 366 U.S. 599, 607 (1961)) (emphasis added; footnote and alteration omitted).
See United Christian Scientists v. First Church of Christ, Scientist, 829 F.2d 1152, 1166 n. 67 (D.C. Cir. 1987) (“Government is permitted, and at times required, to accommodate religious practice when government itself, directly or indirectly, places a burden on religious exercise.“) (citations omitted and emphasis added). As the majority concedes, Sherbert and the pre-Smith cases “tell us that ... the government was not free to burden religious exercise through less direct restraints than criminal sanctions or fines.” Maj. Op. at 63 n.3.
Indeed, both the Supreme Court and this Court held, prior to Smith, that a federal agency‘s approval can be the “source,” see Maj. Op. at 61, of a burden on religious exercise. In Lyng v. Northwest Indian Cemetery Protective Ass‘n, 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988), the Supreme Court applied the Free Exercise Clause to the U.S. Forest Service‘s authorization of third party commercial logging and road projects in areas allegedly sacred to a Native American tribe. Id. at 451. The Court did not hesitate to find that the Forest Service‘s approval of commercial logging caused harm to plaintiffs’ religious exercise. Id. at 447,
In Wilson v. Block, 708 F.2d 735 (D.C. Cir. 1983), we scrutinized the Forest Service‘s decision to grant a permit to private interests seeking to expand and develop a ski area. Plaintiffs filed suit and alleged that the proposed development would burden their religious exercise by impairing “their ability to gather sacred objects and conduct ceremonies.” Id. at 740. We concluded that the Forest Service, in granting a permit for private development, wаs responsible for the alleged burden on religious exercise. See id. at 742 (the “construction approved by the Secretary is, indeed, inconsistent with the plaintiffs’ beliefs, and will cause the plaintiffs spiritual disquiet“). We ultimately found, however, that “such
Because the federal agency action in both Lyng and Wilson consisted of approval of third party action, the inescapable conclusion is that both the Supreme Court and this Court have found such action to be the “source” of a burden on religious exercise. That is, approval by a federal agency of third party action can be subject to a free exercise challenge.
Thus I cannot accept the majority‘s premise that the FAA‘s conduct here does not impose the type of burden on petitioners’ religious exercise that RFRA was enacted to address, especially considering that the FAA‘s actions go beyond the mere approval found sufficient in Lyng and Wilson. The FAA initially “screened” fifteen alternative development proposals, Resp.‘s Br. at 8, eventually selecting four alternatives “for more intensive study.”
The FAA‘s requirement that St. Johannes Cemetery be relocated in order for the project to go forward causes a burden on religious exercise just as surely as the denial of benefits in Sherbert, the approval of commercial logging in Lyng, and the approval of private development in Wilson. The FAA‘s extensive involvement in the plan to relocate St. Johannes Cemetery would not have escaped thе reach of the Free Exercise Clause before Smith and should not escape the reach of RFRA now.
The majority claims that this approach is “unbounded” and would mean that an “individual[] whose religious exercise [is] burdened by private parties” would “grasp[] for a federal decision somewhere in the vicinity [she] could deem to be the ‘indirect’ cause of the burden” and that “every federal licensee would become the state for purposes of RFRA, as the government through its inaction granted ‘approval’ to their decisions.” Maj. Op. at 63-64 n. 4. The “unbounded approach” the majority decries is a straw man of its own making, stuffed and dressed and tied together with hypothetical scenarios that may justifiably raise alarms in other set-
Under RFRA‘s strict scrutiny test, the government must demonstrate a “cоmpelling governmental interest,” and use the “least restrictive means” of furthering that interest.
Under the demands of strict scrutiny, when “a plausible, least restrictive alternative is offered ... it is the Government‘s obligation to prove that the alternative will be ineffective to achieve its goals.” United States v. Playboy Entm‘t Group, Inc., 529 U.S. 803, 816, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). “A governmental body that imposes a ‘substantial’ burden on a religious practice must demonstrate, and not just assert, that the [decision] at issue is the least restrictive means of achieving a compelling governmental interest.” O‘Bryan v. Bureau of Prisons, 349 F.3d 399, 401 (7th Cir. 2003).
The FAA offered only conclusory responses to petitioners’ proposed alternatives. The FAA, however, must “show with ... particularity how its admittedly strong interest[s] ... would be adversely affected by” the various alternatives that would spare St. Johannes Cemetery from relocation. See Yoder, 406 U.S. at 236. Without such a showing, we cаnnot determine if any of these alternatives are a less restrictive means of satisfying the FAA‘s compelling interests. Thus, I would remand this case to the FAA to make such a showing.
Today, the majority holds that a federal agency‘s intense involvement in a plan that substantially burdens religious exercise does not create a burden recognizable under RFRA. I find it difficult to reconcile this outcome with either the plain language of RFRA or the free exercise jurisprudence that guides its interpretation. In enacting RFRA, Congress intended to reach “all cases where free exercise of religion is substantially burdened” by the Federal Government,
JANICE ROGERS BROWN
UNITED STATES CIRCUIT JUDGE
Notes
(a) Findings. The Congress finds that—
...
(4) in Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and
(5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.
(b) Purposes. The purposes of this chapter are—
(1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened ....