NOT FOR PUBLICATION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 APPEALS
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of a letter the Federal Aviation Administration (“FAA”) sent the City in response 

to one the City sent the agency. In its letter, the City alleged the FAA had admitted

to changing flight 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. The 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 response (“FAA 

Letter”) stated only that it did not earlier concede any changes 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 air 

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 “order” 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. FAA, 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 Letter is not 
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a final order, we lack jurisdiction. Because we hold the FAA Letter 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 determination, 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 business 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. Purported final orders that comment only 

“briefly and tentatively” 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 of 
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the agency’s position. It comments briefly upon an 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 requires. 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 1131-33 (finding a definitive statement in an agency directive laying out 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. The FAA Letter 

announced no new agency position that could have caused a change from the status 

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

FAA Letter have followed the same procedure at the airport: they issue 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 regulations 
5 

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 Letter we are asked to review is not a final 

order, so we lack 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 patterns. PETITION DENIED.