United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 19, 2007 Decided December 11, 2007

No. 06-1412

SAFE EXTENSIONS, INC.,

PETITIONER

v.

FEDERAL AVIATION ADMINISTRATION AND

MARION C. BLAKEY, ADMINISTRATOR,

RESPONDENTS

On Petition for Review of an Order of the

Federal Aviation Administration

David M. Hernandez argued the cause and filed the briefs

for petitioner.

Peter R. Maier, Attorney, U.S. Department of Justice,

argued the cause for respondents. With him on the brief was

Robert S. Greenspan, Attorney.

Before: HENDERSON, TATEL, and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge TATEL.
2

TATEL, Circuit Judge: In this case, a company argues that

the Federal Aviation Administration arbitrarily and capriciously

imposed a strict test on its product but not on other, similar

products. The FAA responds with a laundry list of reasons why

this court supposedly cannot hear this challenge. The FAA then

argues that even if we may hear the case, substantial evidence

supports its decision. Because the FAA’s jurisdictional

arguments are wholly meritless and because the agency offers

nothing more to justify its decision than one employee’s bare

assertions unsupported by any actual evidence, we grant the

petition for review.

I.

Federal law authorizes the Federal Aviation Administration

to “prescribe minimum safety standards for . . . operating an

airport serving any passenger . . . aircraft designed for at least 31

passenger seats,” 49 U.S.C. § 44701(b), and directs the agency

to “promote safe flight of civil aircraft . . . by prescribing . . .

regulations and minimum standards for . . . practices, methods,

and procedure[s] the [agency] finds necessary for safety in air

commerce,” id. § 44701(a). Invoking this authority, the FAA

issues “advisory circulars” that establish testing requirements

and product specifications for a range of items airports use.

Private labs test products to determine whether they comply with

FAA standards, and the FAA then publishes a list of approved

items. To obtain federal funding, airports must agree to buy only

products on this list. Thus, airports receiving federal

funding—“virtually every public use airport,” Resp’t’s Br.

3—are prohibited from buying unapproved products.

 

Among the many products the FAA regulates are lights that

line airport runways and the metal bases in which those lights sit.

Light bases used in runways must be very strong because they

experience powerful forces—such as airplanes landing on them

and snow plows driving over them—and must retain their
3

original alignment to illuminate the runway properly. Also,

because runways are repaved frequently, the height of the bases

must be adjustable so they can remain flush with the runway’s

surface.

 

Petitioner Safe Extensions, Inc., manufactures one type of

light base used in airport runways. The FAA calls the light bases

Safe Extensions produces “adjustable products.” Other

manufacturers make a competing technology that the FAA calls

“fixed products.” With both technologies, the base is placed in

a hole in the runway and secured with concrete or special grout.

The two technologies differ in the mechanisms used to adjust

their height. Adjustable products—the ones Safe Extensions

manufactures—have an extension piece at their top; the bottom

of the extension piece is threaded, as is the top of the base. To

adjust the height, the extension piece is twisted upwards. By

contrast, fixed products are made taller by stacking linked

extensions on top of the base. 

The FAA has long required runway light bases to pass a

torque test, which checks whether the base can withstand a

strong force without rotating. From 1970 to 2005, this torque

test applied to all light bases, both adjustable and fixed, and the

test was conducted on light bases installed in the concrete or

grout that secured them. In April 2005, however, the FAA

issued Advisory Circular 42D, which specified that torque

testing would only be required for “bases that utilize a method of

height adjustment that is integral to the base or extension and are

designed for field adjustment.” Advisory Circular 150/5345-

42D: Specification for Airport Light Bases, Transformer

Housings, Junction Boxes, and Accessories ¶¶ 3.1.3.4, 4.3.10

(Apr. 29, 2005). The FAA apparently intended this language to

mean that only adjustable products, not fixed products, had to

pass the torque test. Thus, though the torque test itself remained

unchanged, only adjustable products now had to pass it.
4

Thirteen months later, the FAA issued Advisory Circular

42E (AC-42E), which made the required torque test far more

stringent. Advisory Circular 150/5345-42E: Specification for

Airport Light Bases, Transformer Housings, Junction Boxes, and

Accessories (May 8, 2006). AC-42E specified that torque testing

of adjustable products now had to be conducted on freestanding

light bases, i.e., light bases not yet embedded in concrete or grout

the way they would be in the field. Id. at note after ¶ 4.1.7, ¶

4.3.10. According to Safe Extensions, this caused an outcry

among companies that install adjustable products, with several

complaining to the FAA that the new test “simply won’t work”

and “essentially eliminates the use of” adjustable products. Oral

Arg. at 3:25. After talking to the FAA, some of these companies

were left with the impression that the agency would address their

concerns by issuing a revised advisory circular. Id. at 2:04, 3:34.

Just two months after issuing AC-42E, the FAA emailed a

draft Advisory Circular 42F to a few companies that make or

install runway light bases, though not Safe Extensions. Email

from David Evans de Maria, FAA Airport Engineering Division,

to David Edwards et al. (Aug. 2, 2006). The torque testing

requirements in the draft circular, however, were identical to

those in AC-42E; that is, the draft required freestanding torque

tests for adjustable products but no torque test for fixed products.

Draft Advisory Circular 150/5345-42F: Specification for Airport

Light Bases, Transformer Housings, Junction Boxes, and

Accessories ¶¶ 4.1.7, 4.3.10 (July 31, 2006).

 

Two companies offered comments criticizing the draft of

AC-42F. Olson Industries, which installs both adjustable and

fixed products, argued that adjustable products could never pass

the freestanding torque test and that the circular was unfair

because fixed products, if subjected to the test, couldn’t pass it

either. Email from Ted Olson, Jr., President, Olson Industries,

to David Evans de Maria, FAA Airport Engineering Division
5

(Aug. 16, 2006). The company also complained that the revised

test was unjustified because it had never seen a problem with an

installed adjustable product in its twenty years of experience. Id.

Another installer of runway lights, Siemens Airfield Solutions,

made exactly the same points. Email from Willis Trainor,

Certification Test Engineer, Siemens Airfield Solutions, to David

Evans de Maria, FAA Airport Engineering Division (Aug. 16,

2006).

At some point before the FAA issued the final version of

AC-42F, an agency employee prepared a response to these

comments. Because this response is the only justification the

agency has provided for its decision, we quote it in full:

REJECTED – Fixed [products] have anti-rotational

devices inherent to the physical structure of the device

itself that act in bearing against the surrounding grade.

Adjustable [products] in known currently available

designs have no physical features inherent to the

device itself to prevent rotation, and rely on a

chemical bond acting in shear. There are known

examples where this bond has failed in actual

application following exposure to real world loading

and environmental conditions. Torque testing of

specimens prepared in laboratory conditions may be

able to pass torque tests simulating being mounted in

surrounding grade, but experience has shown that the

same care and attention is not possible to control in

the field. Experience has also shown that required

production testing of in situ torque tests designed to

give a certain level of confidence are not performed.

As adjustable height extensions have no inherent antirotational physical feature that bears against the

surrounding grade it must demonstrate its antirotational capability free standing so that the
6

uncontrollable quality of its installation is not relied

upon for public safety.

Comment Resolutions for Draft Advisory Circular 150/5345-

42F: Specification for Airport Light Bases, Transformer

Housings, Junction Boxes, and Accessories 1-2 (Sept. 5, 2006).

This response appears on a plain sheet of paper in the agency’s

appendix to its brief. The response says nothing about when or

even if the FAA shared it with anyone. At oral argument, Safe

Extensions’s counsel told us that the FAA emailed the response

to selected companies at approximately the same time the agency

published the final version of AC-42F. Oral Arg. at 7:40, 8:15.

According to Safe Extensions, it never received the response

directly from the FAA and had no opportunity to address it

before the final circular was published. Id. at 7:40. The FAA’s

counsel disputed none of this.

The FAA issued the final version of AC-42F on October 17,

2006, making no changes from the draft circular regarding the

torque testing required for adjustable products used in runways.

Advisory Circular 150/5345-42F: Specification for Airport Light

Bases, Transformer Housings, Junction Boxes, and Accessories

¶ 4.3.10 (Oct. 17, 2006). Thus, adjustable products remained

subject to a freestanding torque test fixed products did not have

to pass. On December 15, Safe Extensions filed a petition for

review of AC-42F pursuant to 49 U.S.C. § 46110(a), which

allows any “person disclosing a substantial interest in an order

issued by the . . . Federal Aviation Administration with respect

to aviation duties and powers designated to be carried out by the

[agency] . . . [to] apply for review of the order by filing a petition

for review in the United States Court of Appeals for the District

of Columbia Circuit.” Safe Extensions argues that the FAA

acted arbitrarily and capriciously by imposing a freestanding

torque test on adjustable products but not fixed products. The

FAA responds that this court lacks jurisdiction to review Safe
7

Extensions’s challenge and that, in any event, it acted reasonably

when it decided to treat the two products differently. We address

the jurisdictional issues first and then consider whether the FAA

acted arbitrarily and capriciously.

II.

The FAA argues that we lack jurisdiction to hear this case

for four independent reasons: (1) AC-42F is not an “order”

reviewable under 49 U.S.C. § 46110; (2) Safe Extensions lacks

prudential standing; (3) AC-42F addresses issues committed by

law to agency discretion; and (4) because the differential

treatment Safe Extensions objects to originated in AC-42E, not

AC-42F, the company’s petition is untimely given that the

company filed it more than sixty days after the FAA issued AC42E. We address each argument in turn.

Not an Order

The Administrative Procedure Act, 5 U.S.C. § 551 et seq.,

defines an “order” as “the whole or a part of a final disposition

. . . of an agency in a matter other than rulemaking.” Id. § 551(6)

(emphasis added). To be deemed “final” and thus reviewable as

an order under 49 U.S.C. § 46110, an agency disposition “must

mark the ‘consummation’ of the agency’s decisionmaking

process,” and it “must determine ‘rights or obligations’ or give

rise to ‘legal consequences.’” City of Dania Beach v. FAA, 485

F.3d 1181, 1187 (D.C. Cir. 2007) (quoting Vill. of Bensenville v.

FAA, 457 F.3d 52, 68 (D.C. Cir. 2006)). As a general principle,

“the term ‘order’ in [section 46110] should be read expansively.”

Id. 

The FAA first argues that AC-42F “neither imposes a legal

obligation upon any person nor creates any legal rights.”

Resp’t’s Br. 15. This is absurd. As Safe Extensions points out,

“if a manufacturer’s equipment does not meet AC-42F’s
8

specifications, it cannot be” placed on the list of FAA-approved

products airports can buy. Pet’r’s Opening Br. 22. Thus, AC42F effectively prohibits airports from buying light bases that

fail the new torque test, and it bars manufacturers like Safe

Extensions from selling their products to airports. These are

clear legal consequences of enormous significance to Safe

Extensions.

 

Nothing in Aerosource, Inc. v. Slater, 142 F.3d 572 (3d Cir.

1998), upon which the FAA relies, suggests a different result.

There the FAA had simply issued a warning about mistakes

Aerosource made in its repair work. See id. at 575-76; see also

id. at 581 (“[T]his case concerns nothing more than the issuance

of advisory warnings and the FAA’s refusal to withdraw the

warnings.”). The warning neither barred anyone from

contracting with the company nor barred the company from

continuing to work. See id. at 581. Thus, while the warning

created bad publicity for the company and harmed its finances,

it imposed no legal obligations on it or anyone else. By contrast,

AC-42F has the obvious legal consequences mentioned above.

 

Next, the FAA argues that to qualify as an order, an agency

decision must not only be final, but also “be accompanied by a

record sufficient to permit judicial review,” Resp’t’s Br. 16—a

record the FAA claims AC-42F lacks. This argument ignores

our cases interpreting section 46110. In both Dania Beach and

Bensenville we held that agency actions are reviewable as orders

under section 46110 so long as they are final, i.e., so long as they

mark the consummation of the agency’s decisionmaking process

and determine rights or obligations or give rise to legal

consequences. 485 F.3d at 1187; 457 F.3d at 68. 

Ignoring these recent and controlling cases, the FAA points

to our decision over thirty years ago in Deutsche Lufthansa

Aktiengesellshchaft v. Civil Aeronautics Board, 479 F.2d 912
9

(D.C. Cir. 1973), where, reviewing an earlier version of section

46110, we said: “It is the availability of a record for review and

not the holding of a quasi[-]judicial hearing which is now the

jurisdictional touchstone.” Id. at 915. The FAA has taken this

statement entirely out of context. In Lufthansa, we considered

whether we were bound by United Gas Pipe Line Co. v. Federal

Power Commission, 181 F.2d 796 (D.C. Cir. 1950), in which

“this court held that it had no jurisdiction over direct appeals

from the promulgation of agency regulations where there had not

been an evidentiary record established in a quasi[-]judicial

proceeding before the agency.” Lufthansa, 479 F.2d at 915. The

key question in Lufthansa, then, was whether we could review an

agency’s action despite the absence of a quasi-judicial

proceeding. We held that we could, at least when an evidentiary

record existed. Id. at 916. Thus, in Lufthansa we set forth a

sufficient condition for review when no quasi-judicial

proceeding had occurred, not a necessary condition for reviewing

agency action. And now that we have rejected the United Gas

rule entirely, see Inv. Co. Inst. v. Bd. of Governors of Fed.

Reserve Sys., 551 F.2d 1270, 1276-77 (D.C. Cir. 1977), this

sufficient condition is irrelevant because there is no longer any

doubt about whether we may review agency actions when the

agency held no hearing. 

Several factors confirm this reading of Lufthansa. First, as

noted above, our recent cases regarding whether agency actions

qualify as orders never consider the adequacy of the record,

instead asking only whether the action was final. See Dania

Beach, 485 F.3d at 1187; Bensenville, 457 F.3d at 68. Second,

the statement in Lufthansa that the FAA relies on is a dead letter:

though we cited it a few times after Lufthansa, see, e.g., City of

Rochester v. Bond, 603 F.2d 927, 933 n.26 (D.C. Cir. 1979), and

a few other circuits have picked it up, see, e.g., Sierra Club v.

Skinner, 885 F.2d 591, 593 (9th Cir. 1989), Sima Prods. Corp. v.

McLucas, 612 F.2d 309, 313 (7th Cir. 1980), we haven’t cited it
10

for decades, most likely because the demise of the United Gas

rule has rendered Lufthansa’s reasoning irrelevant. Third, the

FAA’s proposed reading of Lufthansa is precluded by

subsequent Supreme Court cases making clear that the lack of an

adequate agency record to review does not eliminate a circuit

court’s jurisdiction, but rather requires the court to remand to the

agency so the agency can provide a record for review. For

example, in Florida Power & Light Co. v. Lorion, 470 U.S. 729

(1985), the Court rejected the argument that if “the reviewing

[circuit] court [lacks] an adequate agency-compiled factual basis

to evaluate the agency action” it should require the case to be

brought in “a district court with factfinding powers [that] could

make up that deficiency,” id. at 743, explaining:

Such a [result] cannot . . . be squared with

fundamental principles of judicial review of agency

action. “[T]he focal point for judicial review should

be the administrative record already in existence, not

some new record made initially in the reviewing

court.” Camp v. Pitts, 411 U.S. 138, 142 (1973). The

task of the reviewing court is to apply the appropriate

APA standard of review to the agency decision based

on the record the agency presents to the reviewing

court. If the record before the agency does not support

the agency action, if the agency has not considered all

relevant factors, or if the reviewing court simply

cannot evaluate the challenged agency action on the

basis of the record before it, the proper course, except

in rare circumstances, is to remand to the agency for

additional investigation or explanation.

Id. at 743-44 (some citations omitted). Fourth, adopting the

FAA’s additional proposed requirement for an agency act to

count as an order would create perverse incentives. If an agency

action qualified as an order only when accompanied by a
11

sufficient record to permit review, agencies could escape judicial

review by simply refusing to create a record to support their

decisions. This cannot be the law. Finally, directly

contradicting its argument here, the FAA has itself contended

elsewhere that section 46110 applies even when the agency fails

to provide an adequate record for review. For example, in

Dania Beach the FAA argued that for an act to qualify as an

order under section 46110, it need only “mark the consummation

of the agency’s decisionmaking process” and have legal

consequences. Resp’t’s Br. 16, Dania Beach, 485 F.3d 1181

(No. 05-1328) (quoting Bennett v. Spear, 520 U.S. 154, 178

(1997)). Similarly, in Gilmore v. Gonzales, 435 F.3d 1125 (9th

Cir. 2006), the FAA flatly stated: “the presence of an

administrative record is not required for § 46110 to apply.”

Defs.-Appellees’ Br. 28, Gilmore, 435 F.3d 1125 (No. 04-

15736). 

Even if we accepted the FAA’s argument that actions

qualify as reviewable orders only when supported by an

adequate factual record, however, the record here, though

exceedingly thin, is sufficient to permit review. The FAA

assures us that its appendix “includes all the documents upon

which the agency relied.” Resp’t’s Br. 17. Although it claims

that the documents “cannot reflect the entirety of the information

and experience that the agency brought to bear in issuing the

Circular,” id., we have never required that much information

from agencies—we just need enough to determine whether the

agency’s decision was arbitrary. If the FAA’s documents fail to

demonstrate the reasonableness of its decision, it means that the

agency either has chosen not to write down the reasons for its

decision or is unable to do so. Neither possibility is acceptable

under the Administrative Procedure Act. 
12

Prudential Standing

“To establish prudential standing, a party’s ‘grievance must

arguably fall within the zone of interests protected or regulated

by the statutory provision . . . invoked in the suit.’” Nuclear

Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1266 (D.C. Cir. 2004)

(quoting Bennett, 520 U.S. at 162). The basic question is: “who

may and who may not invoke the power of the courts to enforce

the terms of a statute[?]” Hazardous Waste Treatment Council

v. Thomas, 885 F.2d 918, 921-22 (D.C. Cir. 1989). In this case,

Congress has already answered this question in section

46110(a): “a person disclosing a substantial interest in an order

issued by the . . . Federal Aviation Administration with respect

to aviation duties and powers designated to be carried out by the

Administrator . . . may apply for review of the order.” See also

Int’l Bhd. of Teamsters v. Transp. Sec. Admin., 429 F.3d 1130,

1134 n.3 (D.C. Cir. 2005) (equating prudential standing under

section 46110(a) with a party’s substantial interest in the order).

Here Safe Extensions unquestionably has a substantial interest

in the order: if left in place, AC-42F will destroy the market for

the company’s product. 

The FAA argues that Safe Extensions nevertheless falls

outside the zone of interests protected by section 46110(a)

because the statute technically allows the FAA to regulate

airports, not manufacturers. Again, this argument is absurd.

AC-42F effectively regulates Safe Extensions because it

prevents the company from selling its product to airports.

Moreover, to have prudential standing, Safe Extensions must

show only that its “interest is ‘arguably’ one regulated or

protected by ‘the statutory provision at issue.’” PDK Labs., Inc.

v. DEA, 362 F.3d 786, 791 (D.C. Cir. 2004) (quoting Nat’l

Credit Union Admin. v. First Nat’l Bank, 522 U.S. 479, 492

(1998)). Because Safe Extensions has easily met that minimal

standard, the company has prudential standing.
13

Agency Discretion

For its third jurisdictional argument, the FAA claims that

AC-42F is unreviewable because the issues it addresses are

committed by law to agency discretion. Specifically, the FAA

claims that there is no meaningful standard for this court to

apply, that advisory circulars are within the FAA’s “managerial

discretion,” and that judicial review of advisory circulars would

greatly tax the agency’s resources. All three arguments lack

merit. 

As to the first point, the FAA is certainly correct that “[i]f

no ‘judicially manageable standard’ exists by which to judge the

agency’s action, meaningful judicial review is impossible and

the courts are without jurisdiction to review that action.”

Steenholdt v. FAA, 314 F.3d 633, 638 (D.C. Cir. 2003) (quoting

Heckler v. Chaney, 470 U.S. 821, 830 (1984)). But that is

hardly the case here. The FAA issued AC-42F pursuant to 49

U.S.C. § 44701, which authorizes the agency to “(b) . . .

prescribe minimum safety standards for . . . (2) operating an

airport serving any passenger . . . aircraft designed for at least 31

passenger seats,” and directs the agency to “(a) . . . promote safe

flight of civil aircraft . . . by prescribing . . . (5) regulations and

minimum standards for . . . practices, methods, and procedure[s]

the [agency] finds necessary for safety in air commerce.” This

provides a perfectly workable standard to guide the court,

namely whether the FAA’s actions promote air safety. 

We have previously found far more ambiguous statutory

directives reviewable. For example, in Dickson v. Secretary of

Defense, 68 F.3d 1396 (D.C. Cir. 1995), we held that we could

review the Army Board for Correction of Military Records’s

refusal to waive a statute of limitations period under 10 U.S.C.

§ 1552(b), which allows the Board to “excuse a failure to file

within three years . . . if it finds it to be in the interest of justice.”
14

If “in the interest of justice” provides a judicially manageable

standard, then “necessary for safety” certainly does as well. See,

e.g., Union of Concerned Scientists v. Nuclear Regulatory

Comm’n, 824 F.2d 108 (D.C. Cir. 1987) (reviewing whether

regulations “provide[d] adequate protection to the health and

safety of the public” under 42 U.S.C. § 2232(a)). 

This conclusion finds support in the APA’s “strong

presumption of reviewability.” Steenholdt, 314 F.3d at 638. As

the Supreme Court has declared: “judicial review of a final

agency action by an aggrieved person will not be cut off unless

there is persuasive reason to believe that such was the purpose

of Congress.” Abbott Labs. v. Gardner, 387 U.S. 136, 140

(1967). “Because of this presumption favoring judicial review,

we require ‘clear and convincing evidence of a legislative

intention’ to bar such review.” James Madison Ltd. by Hecht v.

Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (quoting Ball, Ball

& Brosamer, Inc. v. Reich, 24 F.3d 1447, 1450 (D.C. Cir.

1994)). Nothing in the Federal Aviation Act even hints that

Congress intended decisions like the one at issue here to be

unreviewable. Indeed, demonstrating just the opposite, 49

U.S.C. § 46110(a) gives this court jurisdiction to review FAA

orders challenged by any “person disclosing a substantial

interest in [them].”

The FAA next argues that AC-42F “reflects the FAA’s

managerial choice, one not susceptible to judicial review.”

Resp’t’s Br. 28. Not only does this argument amount to an

attack on the very principles underlying the APA, including its

“basic presumption of judicial review [for] one ‘suffering legal

wrong because of agency action,’” Abbott Labs., 387 U.S. at 140

(quoting 5 U.S.C. § 702)), but it also ignores that advisory

circulars are no more a “managerial choice” than are the

regulations this court routinely reviews from countless other

agencies. See, e.g., ASG Indus., Inc. v. Consumer Prod. Safety
15

Comm’n, 593 F.2d 1323 (D.C. Cir. 1979) (reviewing the

Consumer Product Safety Commission’s regulations governing

architectural glazing materials). The FAA cites not a single case

to support this baseless contention. 

Finally, the FAA argues that “allowing judicial review of

issuances like this Circular would be very disruptive to the

agency’s operations.” Resp’t’s Br. 28. If review is allowed

here, the agency complains, disgruntled manufacturers will sue

the FAA whenever it issues new advisory circulars. Given that

this is, as best we can tell, the first time in the FAA’s decades of

issuing advisory circulars that a manufacturer has ever

petitioned for review of a circular regulating its products, we

highly doubt the factual premise underlying this argument.

More fundamentally, the FAA’s argument ignores the APA’s

very purpose: to subject agency decisions to judicial scrutiny.

No one pretends that judicial review of agency action is a

pleasant day at the beach for agencies, and although escaping

judicial review would of course be less “disruptive to the

[FAA’s] operations,” id., it would also leave regulated entities,

as well as the flying public—which depends for its safety on

solid, well supported FAA decisionmaking—unprotected from

arbitrary and capricious agency action. 

Furthermore, the cases the FAA cites to support its

argument have nothing to do with the issue before us. Both

National Federation of Federal Employees v. United States, 905

F.2d 400 (D.C. Cir. 1990), and Curran v. Laird, 420 F.2d 122

(D.C. Cir. 1969), involved military decisions about national

security issues this court felt were beyond its purview. See Nat’l

Fed’n, 905 F.2d at 405-06; Curran, 420 F.2d at 131-32. And in

Southern Railway Co. v. Seaboard Allied Milling Corp., 442

U.S. 444 (1979), the Supreme Court concluded that it could find

no law to apply and only then said the disruptive consequences

of allowing review confirmed this position. See id. at 455-59.
16

Moreover, a ruling for the petitioner in Southern Railway would

have required the Interstate Commerce Commission to provide

detailed justifications for millions of individual rates it approved

each year, a disruption several orders of magnitude greater than

the FAA would suffer in this case. See id. at 457. In short, these

cases provide no support for the ludicrous proposition that courts

may not review FAA advisory circulars because judicial review

would create more work for the agency. Like virtually every

other agency, the FAA must defend its decisions in court.

Timeliness

Although the statute granting us jurisdiction in this case

generally requires petitions for review of FAA orders to be filed

within sixty days of the challenged order, it provides that we

“may allow the petition to be filed after the 60th day . . . if there

are reasonable grounds for not filing by the 60th day.” 49

U.S.C. § 46110(a). Neither party discussed timeliness in their

briefs, but in preparing for this case we discovered that the

differential treatment Safe Extensions challenges stems from

AC-42E, not AC-42F, and the company filed its petition more

than sixty days after the FAA issued AC-42E. Accordingly, we

directed the parties to be prepared to discuss this issue at oral

argument.

At oral argument, Safe Extensions’s counsel asserted that

there were “reasonable grounds” for the company’s failure to

file by the 60th day after AC-42E’s issuance. He said that after

the FAA issued AC-42E, the agency “told the industry . . . :

‘Ignore Advisory Circular 42E.’” Oral Arg. at 2:04. The reason

for the FAA’s directive, according to the company, was that AC42E produced “a significant uproar in the industry,” id. at 3:06,

causing numerous companies to meet with the FAA and tell the

agency the advisory circular was unworkable. “As a result,”

counsel said, “the FAA told industry virtually immediately:
17

‘You’re right. . . . We’re going to issue a new draft, a draft F.”

Id. at 3:34. Based on these representations, and hoping to avoid

litigation, the company decided to “wait and see if the FAA

[would] address[] the issues [Safe Extensions] had with 42E” in

42F. Id. at 4:25. 

The FAA’s counsel responded that now that the agency had

thought about the issue, it believed the petition was untimely.

Disputing the version of events described by Safe Extensions,

the agency’s counsel said “I cannot believe that there was any

dialogue in which the FAA told the industry that it need not

comply with 42E,” id. at 17:51, and “I’ve talked to the

responsible FAA officials on this, and if there had been some

informal undertaking to reexamine this issue, I am confident that

they would have told me about it,” id. at 21:31.

 

Because of this factual dispute we asked both parties to

submit affidavits or documents to support their claims. Safe

Extensions’s affidavits strongly support the company’s

description of what happened. One affidavit, from a former

FAA employee who now works for a company that writes

specifications for the agency, declares that FAA officials told

him “to basically ignore AC-42E because [it] would be

eliminated and replaced with [AC-42F],” and that he passed this

information along to Safe Extensions. Oswald Aff. 1-2. In

another affidavit, the president of a company that manufactures

light bases declares that an FAA employee told him to “forget

about AC-42E because the FAA was currently revising AC-42E

and that it would become [AC-42F].” Tappe Aff. 1-2.

Moreover, the president of Safe Extensions tells us that when he

“expressed [his] concerns to [the FAA] about how AC-42E dealt

with [adjustable products],” the FAA responded “that [he]

should wait until AC-42F comes out because the FAA was

currently revising AC-42E.” Reinert Aff. 1-2. Bolstering these

affidavits, Safe Extensions’s petition for review alleged that the
18

FAA had “failed to provide any rational basis for refusing to

revise the Advisory Circular,” Pet. for Review 2, Safe

Extensions, Inc. v. FAA, No. 06-1412 (D.C. Cir. Dec. 15, 2006)

(emphasis added), suggesting the company had reason to believe

the agency was planning to address its concerns with AC-42E in

AC-42F. 

For their part, the FAA’s affidavits make only the very

narrow claim that the agency never told anyone that it “would

reconsider the torque testing standards for [runway] light bases

in connection with a revision of Circular 42-E,” Smith Aff. 4; de

Maria Aff. 4, leaving open the possibility that FAA employees

made more general or ambiguous statements about AC-42E that

could have confused petitioner and others. Moreover, the

FAA’s failure to raise the timeliness issue itself—despite

presenting nearly every other jurisdictional argument

imaginable—leads us to question how strongly the agency really

believes that Safe Extensions should have filed earlier. 

Based on this evidence, we conclude that Safe Extensions

had reasonable grounds for filing more than sixty days after the

FAA issued AC-42E. This conclusion finds support in our

precedent. In Paralyzed Veterans of America v. Civil

Aeronautics Board, 752 F.2d 694 (D.C. Cir. 1985), rev’d on

other grounds, Dep’t of Transp. v. Paralyzed Veterans of

America, 477 U.S. 597 (1986), we held that an organization had

reasonable grounds for waiting more than sixty days to file a

challenge when the group was “[a]ware that the rule might be

undergoing modification[] and unable to predict how extensive

any modification would be,” and therefore “elected to wait until

the regulation was in final form before seeking review.” Id. at

705 n.82. This aptly describes what occurred here. As we said

in Paralyzed Veterans: “Any delay simply served properly to

exhaust petitioners’ administrative remedies, and to conserve the

resources of both the litigants and this court.” Id.
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III.

Having disposed of the FAA’s jurisdictional arguments, we

turn to the merits. Our standard of review is both familiar and

deferential: we review the FAA’s actions under the APA to

determine whether they were “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A); Cmtys. Against Runway Expansion, Inc. v. FAA,

355 F.3d 678, 685 (D.C. Cir. 2004). “Under this standard, we

‘may reverse only if the agency’s decision is not supported by

substantial evidence, or the agency has made a clear error in

judgment.’” J.A. Jones Mgmt. Servs. v. FAA, 225 F.3d 761, 764

(D.C. Cir. 2000) (quoting Kisser v. Cisneros, 14 F.3d 615, 619

(D.C. Cir. 1994)); see also 49 U.S.C. § 46110(c) (FAA

“[f]indings of fact . . . , if supported by substantial evidence, are

conclusive.”). 

To be sure, no statute requires the FAA to engage in the

notice and comment process or hold proceedings on the record

when issuing advisory circulars. Instead, advisory circulars fall

into the vast category of “informal adjudications” in which

agencies routinely engage. Nonetheless, as we explained in

Association of Data Processing Service Organizations, Inc. v.

Board of Governors of Federal Reserve System, 745 F.2d 677

(D.C. Cir. 1984), the agency’s decision still must be supported

by substantial evidence—otherwise it would be arbitrary and

capricious. For “it is impossible to conceive of a ‘nonarbitrary’

factual judgment supported only by evidence that is not

substantial in the APA sense.” Id. at 684. The difference

between this informal adjudication and a formal adjudication on

the record is thus not the amount of evidence the agency must

provide to support its decision, but where the evidence may be

found. In an adjudication on the record “substantial evidence

[must] be found within the record of closed-record

proceedings,” while in an informal adjudication the agency can
20

provide the court with any evidence it had before it when it

made its decision. Id. 

In its brief, the FAA offers three rationales for requiring

freestanding torque testing of adjustable products but not fixed

products. First, it claims that it has had “extensive experience

with [f]ixed [p]roducts,” while “[a]djustable [p]roducts are

relatively new,” justifying the “FAA’s determination to subject

the newer product to more rigorous laboratory tests.” Resp’t’s

Br. 33. If true, this rationale might support the FAA’s

differential treatment of the two products. But the FAA has

provided absolutely no evidence to back it up, and as we made

clear in McDonnell Douglas Corp. v. Department of the Air

Force, 375 F.3d 1182 (D.C. Cir. 2004), an agency’s “declaration

of fact that is ‘capable of exact proof’ but is unsupported by any

evidence” is insufficient to make the agency’s decision nonarbitrary. Id. at 1191 n.4. 

Second, the FAA claims that fixed products “are configured

with anti-rotational devices as part of their design,” while

adjustable products “lack this feature.” Resp’t’s Br. 31. For this

reason, adjustable products, but not fixed products, “depend on

chemical bonding” with the concrete or grout surrounding them

“to maintain their stability.” Id. at 33. Since it cannot possibly

test every adjustable product after installation to ensure the

chemical bond works properly, the agency claims “it was

appropriate . . . to guard against the heightened risk posed by

improper installation . . . by requiring more rigorous laboratory

testing.” Id. For its part, Safe Extensions claims in its reply

brief and an attached appendix that its products actually do have

anti-rotational devices and that many fixed products lack such

devices. The FAA asks us to ignore this argument and Safe

Extensions’s appendix because the company never submitted

evidence to support its argument to the FAA. The FAA may

well be right about this. But we have no need to examine the
21

reply brief and appendix because the FAA has failed to provide

substantial evidence for its argument that fixed products, unlike

adjustable products, have anti-rotational devices. 

The only evidence regarding the presence of anti-rotational

devices in light bases appears in the agency’s response to

industry comments on AC-42F. There, an FAA employee

wrote: “Fixed . . . bases and extensions have anti-rotational

devices inherent to the physical structure of the device itself . . . .

Adjustable height extensions in known currently available

designs have no physical features inherent to the device itself to

prevent rotation . . . .” Comment Resolutions for Draft Advisory

Circular 150/5345-42F, at 1. The FAA, however, has provided

no documents, drawings, or affidavits to support this claim, and

the agency admits that the record it has provided us “includes all

the documents upon which the agency relied.” Resp’t’s Br. 17.

As we have said many times before, “[a]n agency’s unsupported

assertion does not amount to substantial evidence.” Algonquin

Gas Transmission Co. v. FERC, 948 F.2d 1305, 1313 (D.C. Cir.

1991).

As its final rationale for treating fixed and adjustable

products differently, the FAA tells us that “it received a number

[sic] reports of problems in the field with respect to [a]djustable

[p]roducts.” Resp’t’s Br. 34. Again, the only evidence the FAA

has provided to support this rationale appears in its response to

industry comments: 

Adjustable [products] in known currently available

designs have no physical features inherent to the

device itself to prevent rotation, and rely on a

chemical bond acting in shear. There are known

examples where this bond has failed in actual

application following exposure to real world loading

and environmental conditions.
22

Comment Resolutions for Draft Advisory Circular 150/5345-

42F, at 1. This rationale is even weaker than the previous two.

While the first rationale entirely lacked support and the second

had insufficient support, this one is actually contradicted by

evidence the FAA had before it. In their comments on the draft

of AC-42F, two companies that have installed thousands of

adjustable products said they were “not aware of any field

related issues with” adjustable products. Email from Ted Olson,

Jr.; Email from Willis Trainor. By contrast, the FAA offered no

evidence whatsoever of problems in the field with adjustable

products, thus failing to provide substantial evidence to support

this rationale. 

In sum, because the agency’s decision to treat fixed and

adjustable products differently finds no support in the evidence

the agency considered, we find it arbitrary and capricious. See

Data Processing Serv. Orgs., 745 F.2d at 683-84 (explaining

that an agency decision unsupported by substantial evidence is

arbitrary and capricious). 

IV.

Because the FAA’s approach in this case flouts fundamental

principles underlying the Administrative Procedure Act, we

grant the petition for review. 

So ordered.