like to give special election well and to acknowledge my sorry howie was a member of the d c circuit who is assisted us and representation of these parties as well it's our pleasure to be here on behalf of our client your honor to argue this case before you the decision of the f a a to change their prior interpretation of the policy relit relative to revenue diversion at airports and to apply that policy to petitioners is arbitrary and capricious it's an abus discretion and it's contrary to the law this result seems to me we don't have a final order here your honor the but both the november letter from the council as november seventeenth two thousand and sixteen yes or the one that says toward the end the foregoing response represents the present view of the f a a office of chief counsel based on facts presented in your september thirteenth two thousand and sixteen letter to the administrator september two thousand and sixteen letter to the associate administrator for airports and the amended action plan does not constrain future action or opinion this advisory response does not constitute a final agency action order an order issued by the secretary of transportation under forty nine u s city sections forty six one one zero right that is correct your honor the following that we have a letter from the administrator from the f a a administrator to represent if scott in which he indicates that it is a final decision and the parties the petitioners therefore are put into a position where they are potentially based upon the statement that they are covered by this subjected to significant risk of treble damages if this applies to them and that is the risk that we place ourselves in the f a a has are they we find ourselves in the  argued that we get to raise these issues in an enforcement proceeding that's clearly not the log no court has held and many courts have held as we pointed out our brief that we are entitled to a determination of the issues regarding the applicability of this policy to our petitioners before having to face an in foresman action in which we are in jeopardy of serious penalties and it's very clear the issue that is created by the f a a is reliance on the limited language of the code section without reading the entire public law if you look at the public law section eight zero two one zero four days two sixty four congress said that congress finds that section forty seven one hundred seven of title forty nine united states code prohibits the version of certain revenue generated by public airport as a condition of receiving a project grant it ties the reception of a project grant to the revenue diversion issue which is clearly make sense so paragraph two says a grant recipient that uses a grant recipient that uses airport revenue for purposes that are not airport related a manner inconsistent with chapter four seventy one of title forty nine illegally diverts airport remedy that is the circumstance under which this policy and this wall was intended to cover was the diversion of revenue from an airport by an owner operator of that airport they you must have those qualifications in order for this statute to make any sense at all at all well then you would say that the statute itself doesn't make sense no sir i say that the this statute to the petitioners in this case is inconsistent because none of the petitioners in this case fit those qualifications were not owners operators we do not receive grants well but that's not what a set is is it a says that it that it applies to revenue diversion generated by a public airport as a condition of receiving a the receipt of the grant it at the ability to receive a grant is a prerequisite to the application of the statute otherwise the results are absurd fit that that the absurdity of the interpretation placed on the f a a how that it's created we believe that is created because if you review the two taxes that are involved we've got a local option sales tax that is collected pursuit to state authority by cities and counties as a result of revenue as a as a result of a referendum by those cities and counties the law the state law allows for that referendum t place the state collects that tax the state divides that tax and distributes it and the state is that the spending of the tax is based upon the agreement of the parties as to how much they'll get most importantly with regard to that the these cities and counties are required to roll back their millage rate based upon the amount that they receive in lost revenue it is a state statute the school system for the tax adopted by referendum for a specific purpose of capital improvement that's yelling that can be used for the application or attempted application to those two taxes of the policy that is being a numerated by the f a a is illogical it is illegal and it's absurd because it cannot be perform these entities cannot comply with the statute the critical thing to notice about the about the policy in the application is it doesn't say you can't collect the tax the f a a concedes that these entities can receive  collected by the state that limits how that tax could be spent though that is exactly right it only says that you have to spend it at the airport which none of these entities have the ability to do none of the cannot spend that tax at the airport the airports on by the city of atlanta it's located almost exclusively in clayton county is not to be spent at the airport it could be spent in relation to the airports activities right well you know that was some portion of the f a a position as we've discussed this with them however the they have been able have not produced any designation or or airport they're the ones that are that they're doing this and they're not in clayton county they're not a city in clayton county so would be a gratuity as to the school system the school system system is restrained from the ability to spend that money on anything other than the capital improvement projects cease collecting taxes on fuel you have no authority to do that no ma'am we do not we take the county or the petitioner as cannot control that and we have no ability whatsoever to control that tax being collected the the items it applies to are established by state law the only thing that we can do is choose whether or not we're going to impose it in our jurisdiction or knocked and that's done by a referendum with regard to the last that happens one time the only way to stop it is a referendum is to end it and the school system it happens every five years thank you very much thank you mr hancock miss cars good morning may it please the court sonia carson for the respondent i think i can keep this brief as judge perry as you observed there's no threat of enforcement in the chief counsel's letter and indeed even in a letter that cannot mean get to that and i think that's speaking from a very good argument that may end everything but following up just as a practical matter assuming we had a file order here what is clayton county what does the f a say clayton county supposed to do they say under state law they have to collect this tax then under state law they're not allowed to give it to the authority and as a practical matter what are they to do at this juncture so as the f a a explained in the chief counsel's letter and the invitation stands today clayton county is free to consult with the f a a about permissible uses of the revenues that it collects which may include in this is discussed in the twenty fourteen policy interpretation providing an offset so that if there is money that they are compelled by the state to collect and prohibited by the state in spending for an aviation related purpose the f a a has provided a mechanism that accommodates state law that would allow the clayton county entities to allocate other money that they would be free to use for any airport related purpose that they might wish to explain in their action plan for example that their police and fire services responds to incidents at the airports that when people are arrested at the airport they are detained in clayton county facilities prosecuted in the claim county judicial system any of those used as they have a surplus even after they do all that well your honor it's not a strength of their argument that they might collect more money than they could possibly hope to spend for a permissible purpose that runs directly i'm just saying today he's saying they're hamstrung because of state law and he's saying we got a clip they just put it in a bank account nobody ever touches it well your hon or again the process of consultation before the f a a is ongoing and if that is a concern that the county entities have they were free at the time of the quake to achieve counsel's letter and they remain free today to raise that issue with the f a a and the f would would discuss with them how to resolve it and would present i think ultimately that that process what you're saying and to get back to what your first are now you're saying that's an ongoing process at the end of that you may come up with something they don't like and there may be an  our interpretation depends on they say that the f a statutory interpretation is wrong because of a question of fact that the f a has not completed the process of answering and that is sufficient to to dispose of any notion that the chief counsel's mischler they said we agree with you then they came in later and challenge it that they agreed that they were subject to it its record the statute really says subject to federal assistance rather than receipt of federal assistance yes your honor forty seven one three three a and this is on a one in our brief explains that local taxes on aviation fuel or the revenues generated by an airport that is quote subject of federal assistance may not be expended for any purpose other than the purposes that we've discussed that are sufficiently related to the airport the local airport system or evasion thank you thank you miss corson  determination rather than just taking what it says let me talk about the offset letter and counsel mentioned the the fact that every person arrested at the airport goes to the clayton county jail has and is and is processed through the clayton county judicial system at the cost of the citizens clayton county that all said has been suggested and rejected all multiple occasions we have ask the f a a give us offsets tell us what offsets apply to this circumstance tell us what offsets the school system and the city of lovejoy and the city of morrow in lake city in jonesboro have that could that would apply to the airport if you suggested a yes sir weaving suggestion we suggest as ones i mentioned but those people have none that the airport is not in their jurisdiction they can't give the airport money they can't give the city of atlanta money the county provides and maintains roads around the airport and in the area of the airport the city of college park is the only city in clayton county what is your position as to what f a a you call it file what is your position as to what they told you today what they haven't told us to do anything other than don't spend the money except at oh no no the airport project that's all they've told stake here is what the supreme court of the united states says 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 decision making process it must not be of a merely tentative and to lock to tory nature second action must be one by which rights or obligations have been determined or from which legal consequences will flow i don't whether it applies to us and the ability to challenge that with out the hammer of enforcement hanging over our heads so if if their letter if they have not made a final policy decision then maybe we fallen into a declaratory judgment action in moving forward i guess we'll have to decide what to do but if they have not made a final decision we are entitled to notice of that final decision when it is made and the right to challenge that in a manner other than threw it in for some action and we should not be subjected to that being our remedy the interpretation to the extent that they do contend that it is a final determination or that you find it is a final determination the only way to make it not the