NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CITY OF LOS ANGELES,

Petitioner,

BENEDICT HILLS ESTATES ASSOCIATION; BENEDICT HILLS HOMEOWNERS ASSOCIATION,

Petitioners

- Intervenors,

v.
FEDERAL AVIATION ADMINISTRATION; STEPHEN M. DICKSON, in his official capacity as Administrator, Federal Aviation Administration,

Respondents. No. 19

- 73164

MEMORANDUM *

On Petition for Review of an Order of the Federal Aviation Administration Argued and Submitted September 14, 2021

Pasadena, California Before: GOULD, BERZON, and COLLINS, Circuit Judges.

Los Angeles (“the City” ) seeks this court ’s review , under 49 U.S.C. § 46110,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

OCT 26 2021
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

of a letter the Federal Aviation Administration (“FAA”) sent the C ity in response
to one the C ity sent the agency

. In its letter, t he City alleged the FAA ha d admitted

to chang ing fli ght procedures

— specifically, that it was now intentionally directing flights departing Hollywood Burbank Airport (“ Airport ”) from Runway 15 to head further south before banking a turn north

— and did not follow the requisite
environmental and administrative procedures before making the change

. T he City requested that the FAA rescind the alleged change and direct air traffic controllers to follow previous protocols. The FAA ’s six

- sentence letter in resp onse (“FAA Letter”) stated only that it did not earlier concede any change s to the air traffic
control protocol for the Airport and that any southern shift in flight paths is due to
factors built into the existing protocol , such as weather , pilot abilities , and a ir
traffic volume and complexity

. 49 U.S.C. § 46110(a) allows “a person disclosing a substantial interest in an
order issued by . . . the Federal Aviation Administration ” to seek review directly by a court of appeals

. Id. (emphasis added). The term “ o rder” in the statute has been interpreted to mean “final order , ” borrowing from the APA’s requirement that a reviewable order be “the whole or part of a final disposition . . . of an agency in a matter other than rulemaking.” S . Cal

. Aerial Advertisers ’ Ass ’ n v. F AA , 881 F.2d 672, 675 (9th Cir. 1989) (quoting 5 U.S.C. § 551(6)) (interpreting the statute at
issue here by looking to the APA)

. Both parties agree that if the FAA L etter is not3

a final order , we lack jurisdiction. Because we hold the FAA L etter was not a final order, we dismiss this matter for lack of jurisdiction. When considering a purported final order, our overarching consideration is
whether the document “imposes an obligation, denies a right, or fixes some legal relationship.” MacLean v. Dep’t of Homeland Sec. , 543 F.3d 1145, 1149 (9th Cir. 2008) (quoting Gilmore v. Gonzales , 435 F.3d 1125 , 1132 (9th Cir. 2006)). We use
a four

- part test to make the deter mination, asking whether the document has all of the following features : (1) it is supported by a reviewable administrative record, (2) it is a definitive statement of the agency’s position, (3) it has a direct and immediate effect on the day

- to

- day busine ss on the party asserting wrongdoing, and (4) it envisions immediate compliance with [the order’s] terms.

MacLean , 543 F.3d at 1149 (cleaned up). The FAA Letter does not meet these requirements.

Reviewable administrative record. We need not consider the first element
because none of the other three elements is met. Definitive statement of the agency’s position. The FAA Letter did not

express a definitive agency position

. P urported final orders that comment only “briefly and tenta tively” upon a subject but do not “initiate an agency process” nor “specify the exact form” that subsequent action must take do not constitute
definitive statements. See Air California v. U.S. Dep’t of Transp

. , 654 F.2d 616,

620

- 21 (9th Cir. 1981)

. The FAA Letter does not make a definitive statement of4

the agency’s position . I t comments briefly upon a n earlier statement made by the City , and it does so to the effect that the agency position remains what it was

. The most the FAA Letter does is disavow the City’s interpretation of earlier statements an FAA employee made in a public forum

. An agency’s statement disputing an interested party’s interpretation of an earlier agency statement is not the type of definitive statement of policy MacLean re quires. See, e.g. , MacLean , 543 F.3d at 1149 (finding a definitive statement in an agency document determining the protected legal status of a contested message ); Gilmore , 435 F.3d

at 113 1

- 3 3 (finding a definitive statement in an agency directive laying ou t a
detailed security policy and how it should be implemented ). Direct and immediate effect. The FAA Letter produced no direct and
immediate effect. This conclusion follows from the second factor . T he FAA Letter
announced no new agency position that could have caused a change from the status

quo. According to the FAA, a ir traffic controllers, before, during, and after the

FAA Letter have followed the same procedure at the airport : they issu e directions to pilots based on factors such as temperature and air traffic volume to keep flight paths separate. The FAA Letter had no bearing on this procedure other than to
reaffirm it , so it “left the world just as it found it.” Indep. Equip. Dealers Ass ’n v.
EPA , 372 F.3d 420, 428 (D.C. Cir. 2004). “The Letter neither announced a new interpretation of the regulations nor effected a change in the regulations5

themselves.” Id. at 427. Immediate compliance. Finally, from the foregoing it follows that the FAA
Letter did not “ envision [] immediate compliance” with its terms. MacLean , 543
F.3d at 1149 (citation omitted)

. The Letter contains no terms with which the FAA could have envisioned compliance. In sum, we hold that the FAA L etter we are asked to review is not a final order, so we l ack jurisdiction to review it. We cannot and do not decide whether the City could have raised its concerns about the current flight patterns around the Airport in a different manner that would have resulted in jurisdiction in this court
or a district court to review those pa tterns. PETITION DENIED.