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10-4612-ag

Paskar v. USDOT

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2012

(Argued: January 6, 2012 Decided: April 9, 2013 Corrected: April 10, 2013 

Corrected: April 12, 2013)

Docket No. 10-4612-ag

____________________

KENNETH D. PASKAR AND FRIENDS OF LAGUARDIA AIRPORT, INC.,

Petitioners,

v.

UNITED STATES DEPARTMENT OF TRANSPORTATION; RAY LAHOOD, SECRETARY OF 

TRANSPORTATION; FEDERAL AVIATION ADMINISTRATION; AND J. RANDOLPH BABBIT,

ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION,

Respondents,

CITY OF NEW YORK,

Intervenor Respondent.

____________________

Before:

HALL and CHIN, Circuit Judges, and HELLERSTEIN, Senior District Judge.

*

 

*

The Honorable Alvin K. Hellerstein, Senior District Judge for the U.S. District Court 

for the Southern District of New York, sitting by designation.

____________________
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Petitioners Kenneth Paskar and Friends of LaGuardia Airport, Inc., seek review of 

a September 2, 2010, letter written by the Federal Aviation Administration pursuant to 49 U.S.C. 

§ 46110. The letter endorsed a series of recommendations made by a panel of experts regarding 

the impact of a proposed marine trash-transfer facility on safe airport operations at LaGuardia 

Airport. We hold that the letter does not constitute a final order reviewable by this Court. We 

DISMISS the petition for lack of jurisdiction.

____________________

RANDY M. MASTRO, J. Ross Wallin, Gibson, Dunn & Crutcher 

LLP, New York, New York; Steven M. Taber, Taber Law 

Group, Irvine, California, for Petitioners.

ROBERT S. RIVKIN, General Counsel, Paul M. Geier, Assistant 

General Counsel, Joy Park, Trial Attorney, Department of 

Transportation; Daphne Fuller, Assistant Chief Counsel, 

Elizabeth Newman, Attorney Advisor, Federal Aviation 

Administration; Tony West, Assistant Attorney General, 

Michael Jay Singer, Abby C. Wright, Department of 

Justice, Washington, D.C., for Respondents.

MICHAEL A. CARDOZO (Leonard Koerner, Christopher Gene 

King, Elizabeth S. Natrella, Amy McCamphill, on the 

brief), Corporation Counsel of the City of New York, New 

York, New York, for Intervenor Respondent.

____________________

Hellerstein, Senior District Judge:

Petitioners seek review of a letter written by the Federal Aviation Administration 

(“FAA”) to the City of New York (“City”) on September 2, 2010 (the “Letter”). Petitioners 

contend the Letter is a “final order” subject to review by this Court. The Letter states that the 

FAA agrees with an expert panel’s finding that the City’s plan to reopen a coastal garbage 

transfer facility in College Point, Queens, would be compatible with safe air operations as long 
3

as several recommendations are followed. The facility, the North Shore Marine Transfer Station 

(“Station”), is 2,206 feet across Flushing Bay from the landing threshold of Runway 31 at 

LaGuardia Airport and 585 feet perpendicular to its extended centerline. We hold that, because 

the Letter is not a “final order” for purposes of 49 U.S.C. § 46110(a), we are without jurisdiction 

to review it. The petition for review is therefore dismissed.

I. Factual Background

LaGuardia Airport is located on the western shore of Flushing Bay, on the side 

closer to Manhattan. Flushing Bay is a natural habitat for waterfowl, including large birds like 

gulls who shelter in its wetlands and feed on the fish and shellfish in its tides and mudflats. Since 

these birds flock and soar, they may present a danger to the aircraft that take off and land at 

LaGuardia. Thus, over the years the owner of the airport, the Port Authority of New York and 

New Jersey (“Port Authority”), conducted studies of the habitat of these birds in an effort to 

control their population and minimize the danger they present to aircraft and the public. In 2000, 

the Port Authority, with assistance from the U.S. Department of Agriculture’s (“USDA”) 

Wildlife Services, conducted a year-long wildlife hazard assessment, culminating in the creation 

of a wildlife hazard management plan in 2002. Its studies, continued in the years that followed, 

and updates and modifications to its plan, were published from time to time. In 2009-2010, again 

with the assistance of Wildlife Services, the Port Authority conducted another year-long wildlife 

hazard assessment and issued its report on March 3, 2011, with a number of recommendations to 

mitigate the effects of wildlife on the airport’s operations. 

The Port Authority conducted these wildlife hazard assessments pursuant to 

federal regulations requiring airports holding a federal certificate to “take immediate action to 
4

alleviate wildlife hazards whenever they are detected.” 14 C.F.R. § 139.337(a), (b). Airports are 

required to conduct a “wildlife hazard assessment” and submit their report to the FAA when 

certain triggering events occur, such as multiple wildlife strikes or an engine ingestion of 

wildlife. The FAA can then order the airport to develop a “wildlife hazard management plan,” to 

“[p]rovide measures to alleviate or eliminate wildlife hazards to air carrier operations.” 14 C.F.R. 

§ 139.337(d), (e). The plan is required to prioritize wildlife population management, habitat 

modification, and land use changes, and be reevaluated at least every 12 months. 14 C.F.R. § 

139.337(f)(2) and (f)(6). If the FAA determines that the airport is not meeting its obligations and 

endangering air safety, the FAA can amend, modify, suspend, or revoke the airport’s certificate. 

49 U.S.C. § 44709(c). 

In 2006, the New York City Department of Sanitation issued a Comprehensive 

Solid Waste Management Plan, to reduce pollution and deal more efficiently and economically 

with the 50,000 tons of garbage and recyclables that it collects each day. A central part of the 

plan proposed to reopen four shuttered marine trash-transfer stations on New York City 

waterways. Garbage would be trucked to the stations and loaded into sealed containers and onto 

barges for marine transfer to other collection points or final disposal sites. One of these stations 

is the North Shore Marine Transfer Station in College Point, Queens, on the shore of Flushing 

Bay, across an inlet from LaGuardia Airport.1The City proposed a three-level, fully enclosed 

facility operating under negative air pressure to contain smells of refuse within the structure and 

reduce attractions to birds to a minimum. Trash trucks were to drive into the facility through 

 

1

The North Shore Station was operated by the New York City Department of Sanitation between 

1954 and 2001, and was then closed. The other three proposed renovated facilities are located on 
5

high-speed roll-up doors, dump their loads into watertight, leak-proof containers, and exit 

through another set of such doors. The sealed and loaded containers were then to be transported 

via waterway to their destinations.

Upon a determination by the Secretary of Transportation that a proposed structure 

“may result in an obstruction of the navigable airspace or an interference with air navigation 

facilities and equipment or the navigable airspace, the Secretary shall conduct an aeronautical 

study to decide the extent of any adverse impact on the safe and efficient use of the airspace, 

facilities, or equipment.” 49 U.S.C. § 44718(b). The Secretary has delegated to the FAA the 

responsibility of conducting such studies, and of determining if the proposed construction or 

“alteration of an existing structure,” creates a hazard to air navigation. 14 C.F.R. §§ 77.29(a), 

77.31(a). In reaching a Hazard or No Hazard determination, seven criteria are considered, 

including “the impact of a proposed structure . . . on aeronautical operations, procedures, and the 

safety of flight,” “[a]irport traffic capacity,” “[m]inimum obstacle clearance altitudes,” and “the

potential effect on ATC radar.”214 C.F.R. § 77.29(a).

 

New York Bay in Brooklyn and on the East River at the terminus of East 91st Street in

Manhattan.

2

(a) The FAA conducts an aeronautical study to determine the impact of a proposed structure, an 

existing structure that has not yet been studied by the FAA, or an alteration of an existing 

structure, on aeronautical operations, procedures, and the safety of flight. These studies include 

evaluating:

(1) The impact on arrival, departure, and en route procedures for aircraft operating under 

visual flight rules;

(2) The impact on arrival, departure, and en route procedures for aircraft operating under 

instrument flight rules;

(3) The impact on existing and planned public use airports;

(4) Airport traffic capacity of existing public use airports and public use airport 

development plans received before the issuance of the final determination;

(5) Minimum obstacle clearance altitudes, minimum instrument flight rules altitudes, 

approved or planned instrument approach procedures, and departure procedures;
6

The proposed North Shore Station was the subject of two FAA-conducted 

aeronautical studies, in 2006 and 2008. Both resulted in findings of “No Hazard.” On September 

18, 2006, after its first study, the FAA determined that the proposed 110-foot-high facility 

“would have no substantial adverse effect on air navigation” provided it was equipped with the 

proper lights. The FAA added, however, that while the structure would not be a hazard, its 

location in LaGuardia’s “runway protection zone” was “strongly discouraged in the interest of 

protecting people and property on the ground.”3

The Port Authority, the owner of LaGuardia Airport, objected and petitioned the 

FAA for discretionary review. 14 C.F.R. § 77.37. In response, the City redesigned the proposed 

Station, lowering its height to 100 feet and moving it out of the runway protection zone. The Port 

Authority accepted the changes and withdrew its petition for review. Thus, the FAA’s 

determination of No Hazard became final.

The alteration in the City’s designs gave rise to a second FAA-conducted 

aeronautical study. Again, on September 19, 2008, the FAA issued a No Hazard determination, 

finding that “the structure would have no substantial adverse effect on the safe and efficient 

utilization of the navigable airspace by aircraft or on the operation of air navigation facilities,” 

 

(6) The potential effect on ATC radar, direction finders, ATC tower line-of-sight 

visibility, and physical or electromagnetic effects on air navigation, communication 

facilities, and other surveillance systems;

(7) The aeronautical effects resulting from the cumulative impact of a proposed 

construction or alteration of a structure when combined with the effects of other 

existing or proposed structures.

14 C.F.R. § 77.29(a).

3 We granted petitioners’ motion to take judicial notice of the 2006 and 2008 proceedings.
7

provided that it was equipped with proper lighting.4The FAA added that if the height of the 

proposed structure were to exceed 100 feet, that would result in a Hazard determination.

Four months after the second No Hazard determination, U.S. Airways Flight 

1549, taking off from LaGuardia Airport, flew into a flock of Canada Geese. The airplane’s jet 

engines ingested several of the geese and stalled at an altitude of less than 3000 feet. The pilot, 

Capt. Chesley B. Sullenberger, and co-pilot, First Officer Jeffrey B. Skiles, ditched the aircraft 

on the Hudson River, and all passengers and crew were saved.5In the wake of the incident, on 

March 4, 2009, Queens County Congressman Gary Ackerman and other members of New 

York’s congressional delegation wrote to FAA Acting Administrator Lynne Osmus, expressing 

concern that birds might be “eagerly gathering about and circling above” the proposed Station. 

The FAA responded, assuring that the Station would be safe, as it complied with FAA Advisory 

Circular 150/5200-33B. The Circular states, “Enclosed waste-handling facilities [that follow 

certain procedures] generally are compatible with safe airport operations, provided they are not 

located on airport property or within the Runway Protection Zone.” However, the Congressmen 

were not assuaged.

In the fall of 2009 Secretary of Transportation Ray LaHood appointed a panel of 

experts from the FAA, USDA, U.S. Air Force, Port Authority, City, and an independent 

consulting firm, to “study the impact of the proposed [Station] on safe airport operations at 

LaGuardia Airport.”6The blue ribbon panel reviewed current and historical wildlife data and

 

4

See note 3.

5

See National Transportation Safety Board, Aircraft Accident Report 10/03, PB2010-910403.

6

The authority to initiate the study derives from the Secretary’s general powers, which allow 

him to “exercise leadership in transportation matters,” “undertake the development . . . of . . . 
8

surveys, including a history of bird strikes at LaGuardia Airport. It observed and studied the 

habits of birds near the proposed Station and at other operational trash transfer stations in the 

City, most particularly at the Staten Island Transfer Station, which has a similar building design 

and is in an area with a large gull population. The panel examined the design plans and 

operational parameters of the North Shore Station and conducted risk assessments of three 

different alternatives: no facility, the facility as planned, and the facility with wildlife mitigation 

measures in place. A draft report was issued, and comments from the public were solicited.

On September 2, 2010, the panel of experts issued its report.7The panel found 

that “changes to the building design, adherence to strict operational procedures, and the 

development and implementation of an integrated wildlife hazard management plan and program 

can reduce the hazards to aviation safety posed by birds attracted to the proposed facility.” The

panel concluded that its recommendations would “achieve compatibility between the [Station] 

and LaGuardia Airport with respect to bird strikes and safe air operations” and “greatly reduce 

the risk of a bird strike as compared to the present situation.”

The FAA sent its report to the New York City Department of Sanitation, with a 

one-page cover letter dated the day the report was released, September 2, 2010. The Letter states, 

“The report concludes the proposed [North Shore Station] will be compatible with safe air 

operations so long as it is constructed and operated in accordance with the report’s 

recommendations.”8The Letter explains that the FAA reviewed the report and believed “the 

 

information relevant to . . . transportation,” and “promote and undertake research and 

development related to transportation.” 49 U.S.C. §§ 301(1), (4), (6).

7

Evaluation of the North Shore Marine Transfer Station and Its Compatibility with Respect to 

Bird Strikes and Safe Airport Operations at LaGuardia Airport, August 2010.

8

The full body of the Letter reads:
9

technical panel’s approach to the issue presented was appropriate and its analysis and 

conclusions are sound. We believe it is important for the [C]ity to adopt the recommendations of 

the panel and we appreciate your undertaking to adopt them in full, and we urge you to commit 

to implementing the recommendations in full.” The City responded that it accepted the 

recommendations and was proceeding with construction of the facility as recommended by the 

FAA.

II. Procedural History

 

Last year, following the forced landing of U.S. Airways Flight 1549 in the 

Hudson River, Secretary LaHood requested that an expert technical panel 

reexamine whether the proposed North Shore Marine Transfer Station (MTS) in 

College Point, Queens, would be compatible with safe operations at LaGuardia 

Airport. We were fortunate to be able to assemble a true "blue ribbon" panel, 

including experts in bird strike hazards from the United States Air Force, the 

Federal Aviation Administration, the United States Department of Agriculture, 

the city of New York, and the Port Authority of New York and New Jersey.

The panel issued its final report, "Evaluation of the North Shore Marine Transfer 

Station and its Compatibility with Respect to Bird Strikes and Safe Air Operations 

at LaGuardia Airport," on September 2. The report concludes the proposed MTS 

will be compatible with safe air operations so long as it is constructed and 

operated in accordance with the report's recommendations.

The FAA has reviewed the final report. We believe the technical panel's approach 

to the issue presented was appropriate and its analysis and conclusions are sound. 

We believe it is important for the city to adopt the recommendations of the panel 

and we appreciate your undertaking to adopt them in full, and we urge you to 

commit to implementing the recommendations in full. 

Secretary LaHood and the FAA appreciate your cooperation with the work of the 

technical panel. We look forward to working with you to protect the safety of the 

region's airports.

FAA Director of Airport Safety and Standards, Michael J. O’Donnell, to Harry Szarpanski, 

Deputy Commissioner of NYC Department of Sanitation, Sep. 2, 2010.
10

Petitioners in this case, a general aviation pilot and a not-for-profit corporation 

interested in the safety of aviation, filed this petition for review on October 29, 2010, seeking 

review by this Court of the September 2, 2010, Letter from the FAA to New York City.9

Petitioners alleged that they had a substantial interest in the Letter’s subject matter, that the 

Letter was a final order reviewable by this Court, and that it was arbitrary and capricious. If the 

court has jurisdiction, we may “amend, modify, or set aside any part of the order.” 49 U.S.C. 

§ 46110(c).

On January 7, 2011, Respondents moved to dismiss the petition on the ground 

that the Letter was not an “order,” and that the court of appeals therefore lacks subject matter 

jurisdiction to hear the petition. On April 6, 2011, a motions panel of this Court denied the 

motion to dismiss, holding that the Letter was an order subject to review pursuant to the 

provisions of 49 U.S.C. § 46110. Motion Order Denying Respondents’ Motion to Dismiss, 

Paskar v. U.S. Dep’t of Transp., No. 10-4612-ag, Docket No. 61, (2d Cir. Apr. 6, 2011).

III. Discussion

a. Revisiting the Motions Panel Decision

A merits panel may revisit a decision made by a motions panel. Rezzonico v. H & 

R Block, Inc., 182 F.3d 144, 149 (2d Cir. 1999). “[R]eexamination of a question regarding our 

jurisdiction is especially important whenever there is reason to believe that it may be lacking.” 

Id.

In denying Respondents’ motion to dismiss, the motions panel found that it had 

 

9

Petitioners also filed suit in New York State Supreme Court to block construction of the

Station. On November 28, 2011, their claims were dismissed. Matter of Paskar v. New York 

State Dept. of Envtl. Conservation, 33 Misc. 3d 1226A (N.Y. Sup. Ct. 2011).
11

jurisdiction to review the Letter from the FAA to New York City as a “final order.” In support of 

its decision the motions panel cited New York v. FAA, 712 F.2d 806 (2d Cir. 1983), in which the 

FAA refused to amend the operating certificate of the Republic Airport in Suffolk County, New 

York, thereby denying New York State the ability to operate the airport. The court held that it

had jurisdiction to review the FAA order because it was a “final order” which “impose[d] an 

obligation, denie[d] a right, or fixe[d] some legal relationship” among the interested parties. Id.

at 808. As discussed below, the Letter in this case does not meet these qualifications. 

The motions panel also cited City of Rochester v. Bond, 603 F.2d 927, 933 & n.27 

(D.C. Cir. 1979), in which the D.C. Circuit held that No Hazard determinations are reviewable 

final orders. But, as will be discussed below, the FAA Letter at issue here is not a No Hazard 

determination. 

Thus, we have cause to reexamine the motions panel’s decision because “there is 

reason to believe that [our jurisdiction] may be lacking.” Rezzonico, 182 F.3d at 149.

b. Whether the Letter is a Reviewable Order

This Court has jurisdiction to review the FAA Letter if the Letter is an “order” 

within the definition of 49 U.S.C. § 46110(a). Pursuant to § 46110(a), “a person disclosing a 

substantial interest in an order” issued by the Administrator of the FAA “may apply for review of 

the order by filing a petition for review...in the court of appeals of the United States for the 

circuit in which the person resides or has its principal place of business.”10 The Administrative 

Procedure Act defines an “order” as “the whole or a part of a final disposition...of an agency in a 

 

10 We assume without deciding that petitioners, a pilot who flies in and out of LaGuardia 

Airport and a not-for-profit corporation concerned with air safety at LaGuardia, have a 

“substantial interest” in this matter.
12

matter other than rule making.” 5 U.S.C. § 551(6). Although the term “order” is to be given a 

“liberal construction,” “only final orders are reviewable” under § 46110(a). New York v. FAA, 

712 F.2d at 808 (citing McManus v. CAB, 286 F.2d 414, 417 (2d Cir.), cert. denied, 366 U.S. 928 

(1961)). A “final order” is one that “imposes an obligation, denies a right, or fixes some legal 

relationship.” New York v. FAA, 712 F.2d at 808 (internal quotation marks omitted). A “final 

order” must satisfy two criteria: the agency action must mark the “consummation of the agency’s 

decisionmaking process,” and the action “must be one by which rights or obligations have been 

determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-

78 (1997) (citing Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 

(1948), and Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 

62, 71 (1970)) (internal quotation marks omitted). The Letter from the FAA to the City of New 

York does not satisfy these criteria.

No term in the Letter “imposes an obligation” on the City, “denies a right” of the 

City, or “fixes some legal relationship” with the City. New York v. FAA, 712 F.2d at 808. The 

Letter “urge[d]” the City to implement the panel report’s recommendations and expressed the 

sentiment that the recommendations are “important for the city to adopt.” However, there is 

nothing in the Letter that commands the City to stop, change, or continue construction of the 

North Shore Station. A letter advising the City to follow safety recommendations, without more, 

hardly “fixes a legal relationship.” The City could have accepted or rejected the FAA’s 

recommendations without recourse by any party. Petitioners do not contest this point, and have 

presented no authority that holds otherwise. Although the City accepted the panel’s 

recommendation to adopt certain wildlife hazard mitigation measures, including removing ledges 
13

on which birds like to perch, the City did not have to do so. The FAA could not have required the 

City to alter its designs of the Station, nor denied the City’s right to build it, nor imposed an 

obligation to institute wildlife management procedures. Aircraft Owners & Pilots Ass’n v. FAA, 

600 F.2d 965, 967 (D.C. Cir. 1979). Indeed, “[t]he FAA is not empowered to prohibit or limit 

proposed construction it deems dangerous to air navigation.” Id. 

We recognize that other circuits have held that a letter may be a reviewable final 

agency action, provided, of course, that the letter imposes tangible, definite, and immediate legal 

consequences. See, e.g., San Diego Air Sports Ctr., Inc. v. FAA, 887 F.2d 966, 970 (9th Cir. 

1989) (holding that a letter banning parachuting near San Diego airport was a final order because 

it created an “immediate, substantive rule”); Air One Helicopter, Inc. v. FAA, 86 F.3d 880, 882 

(9th Cir. 1996) (holding that an FAA letter denying Air One the right to register its helicopter in 

the United States was a final order because “it would be futile for Air One to attempt to persuade 

the FAA to change the position it clearly sets forth” in the letter and federal law requires 

helicopters register with the FAA); S. Cal. Aerial Advertisers’ Ass’n v. FAA, 881 F.2d 672, 677 

(9th Cir. 1989) (holding that a letter from an FAA official banning fixed-wing aircraft travel 

through shoreline area was final agency action because it was a “definitive statement of the 

FAA’s position that had a direct and immediate effect on petitioner’s members and that carried 

an expectation of immediate compliance”). The Letter here had no such fixed consequences for 

the City of New York, for it imposed no obligation, denied no right, and fixed no legal 

relationship. See Red River Transp. & Dev. Co., Inc. v. FAA, 630 F.2d 592, 594 (8th Cir. 1980) 

(holding that FAA letter directing air freight company to comply with regulations regarding ice 

protection equipment on planes was not a final order because the letter was “tentative [in]
14

nature” and administrative remedies regarding request to comply had not been exhausted).

This case is similar to Air California v. United States Dep’t of Transp., 654 F.2d 

616 (9th Cir. 1981), in which the Ninth Circuit held that a letter from the FAA’s chief counsel 

did not constitute a reviewable order because it lacked requisites of finality. In that case, in an 

effort to reduce noise near the Orange County Airport, the Orange County Board of Supervisors 

limited the number of airline carriers permitted to fly into the airport. In response to the 

complaints of disappointed competitors, the FAA issued a report concluding that denying other 

airlines access to the airport violated FAA-administered, federal statutes. The report also 

contained a number of suggestions for reducing noise around the airport. The FAA’s chief 

counsel sent a letter to the Board of Supervisors endorsing the report and noting that failure to 

negotiate with new airline carriers would “warrant [the FAA’s] pursuance of contractual, 

injunctive, and civil penalty remedies.” Id. at 618 (internal quotation marks omitted). Despite the 

fact that the letter threatened to impose penalties and suggested that the FAA might withhold 

federal funding from the airport for continued noncompliance, the Ninth Circuit held that the 

letter was not a final order because it was “neither a definitive statement of the agency’s position 

nor a document with the status of law.” Id. at 620. “The letter did not specify the exact form that 

compliance would take....” Id. Although the Board of Supervisors ultimately agreed with the 

FAA, the court noted that the Board could have challenged the FAA in subsequent enforcement 

actions. Thus, the letter did not “impose an obligation, deny a right, or fix some legal 

relationship.” Id. at 621.

Petitioners argue that the Letter had a “substantial practical impact,” imposing a 

de facto obligation on the City. In Aircraft Owners, the D.C. Circuit held that it had jurisdiction 
15

to review the FAA’s determination that a television antenna tower proposed to be built near three 

Virginia airports posed “No Hazard” to air navigation. In that case, the FAA had found that the 

antenna tower would not constitute an “obstruction of the navigable airspace or an interference 

with air navigation facilities and equipment or the navigable airspace.” 49 U.S.C. § 44718(b).

The D.C. Circuit held that it had jurisdiction to review the FAA order. The FAA’s Hazard/No 

Hazard determination as to the television antenna tower would affect the decision of another 

agency, the Federal Communications Commission, whether or not to issue a permit necessary for 

the tower’s construction. Since the FAA’s determination had this “substantial practical impact,” 

it had sufficient legal force for the D.C. Circuit to hold that it was a final order that it could 

review. Aircraft Owners, 600 F.2d at 966-67; see also Town of Barnstable v. FAA, 659 F.3d 28, 

32 (D.C. Cir. 2011) (FAA No Hazard determination was prerequisite for obtaining Department 

of Interior lease to an offshore windfarm). The court of appeals applied the ruling of the U.S. 

Supreme Court that an agency action, in order to constitute a “final order,” must be one “by 

which rights or obligations have been determined, or from which legal consequences will flow.” 

Bennett, 520 U.S. at 178 (internal quotation marks omitted); see also Safe Extensions, Inc. v. 

FAA, 509 F.3d 593, 598 (D.C. Cir. 2007) (“To be deemed ‘final’ and thus reviewable as an order 

under 49 U.S.C. § 46110, an agency disposition...must determine rights or obligations or give 

rise to legal consequences.”). 

Whatever the reviewability of a Hazard/No Hazard determination generally, our 

task in the case before us is to determine the reviewability of a one-page Letter to the City which 

states agreement with the recommendations made in a panel report. The Letter differs from a 

Hazard/No Hazard determination in the legal authority which underlies it and in the practical 
16

effect emanating from it. The panel report was commissioned by the Secretary of Transportation 

pursuant to his general powers, 49 U.S.C. § 31133(a). It was a report of experts appointed from a 

number of federal, state, and city agencies. It was not a Hazard/No Hazard determination nor a 

wildlife hazard assessment, the two types of FAA proceedings that evaluate potential dangers to 

air navigation. See 14 C.F.R. §§ 77.31, 139.337(b). The report followed two FAA aeronautical 

studies of the North Shore Station, both concluding in No Hazard determinations, and numerous 

wildlife hazard assessments ordered and carried out by the Port Authority and the USDA. The 

Letter does not affect any other federal agency, as did the No Hazard determination in Aircraft 

Owners, nor “alter the legal regime” to which the City is subject, or affect any permit or lease of

the Station.11 Bennett, 520 U.S. at 178.

c. The Fifth Circuit’s “Moral Suasion” Test

The Fifth Circuit has espoused a “moral suasion” test whereby an order having 

sufficient moral force is deemed a reviewable final order. See Air Line Pilots’ Ass’n Int’l v. DOT, 

446 F.2d 236, 240-41 (5th Cir. 1971); Menard v. FAA, 548 F.3d 353, 357 (5th Cir. 2008). That is 

not the test in the Second Circuit. However, even if we were to apply the “moral suasion” test, 

petitioners’ claims would still fail because the FAA Letter did not impose “a practical stumbling 

block to the construction” of the North Shore Station and was consistent with the FAA’s two 

prior No Hazard determinations. Air Line Pilots, 446 F.2d at 241 (internal quotation marks 

omitted). In Air Line Pilots, the FAA determined that the construction of three high-rise 

complexes near Love Field, Dallas, posed No Hazard to air navigation. The Fifth Circuit set 

 

11 The City made the changes to the design and operations of the Transfer Station recommended 

by the FAA Letter, and asked the New York State Department of Environmental Conservation to 
17

aside the No Hazard determination, holding that the determination was reviewable because the 

“moral suasion” of the Hazard/No Hazard determination would either erect or remove “a 

practical stumbling block to the construction of the proposed buildings.” Id. “[A]s a practical 

matter, it would unquestionably have been very difficult for the proponents of the proposed 

structures to secure financing or obtain insurance on a building that officially had been declared 

a ‘hazard to air navigation.’” Id.

In the present case, the FAA Letter does not pose a practical “stumbling block” to 

the construction of the North Shore Station. The Letter is not a No Hazard determination. FAA 

aeronautical studies in 2006 and 2008 had already determined that the Station posed No Hazard 

to air navigation. The panel report was consistent with those determinations, and neither created, 

nor removed, a “stumbling block.” Nothing in the recommendations of the panel, or the Letter, 

ordered the City to do anything, or to desist from doing anything. No other regulatory agency 

awaited the issuance of the panel report, and no financing or insurance was conditioned on the 

content of the Letter. To the extent that the Fifth Circuit has announced a definition of a “final 

order” inconsistent with our understanding of the term, see New York v. FAA, 712 F.2d at 808, 

we decline to follow it. 

IV. Conclusion

The FAA letter and inter-agency panel report did not deny a right, impose an 

obligation, or have legal consequence. It was not a “final order,” and we lack jurisdiction to 

review it. The petition for review is DISMISSED.

 

reflect the changes in the permit it issued. The changes were not the legal consequence of any 

order.