RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0109p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

R/T 182, LLC,

Petitioner,

v.

FEDERAL AVIATION ADMINISTRATION,

Respondent.

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No. 07-3678

On Appeal from the

Federal Aviation Administration.

No. 16-05-14.

Submitted: January 16, 2008

Decided and Filed: March 11, 2008 

Before: MARTIN, GIBBONS, and GRIFFIN, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Stewart D. Roll, CLIMACO, LEFKOWITZ, PECA, WILCOX & GAROFOLI,

Cleveland, Ohio, for Petitioner. Michael Jay Singer, Constance A. Wynn, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. 

_________________

OPINION _________________

BOYCE F. MARTIN, JR., Circuit Judge. R/T 182 appeals the decision of the Federal

Aviation Administration to allow a local airport to charge a maintenance fee to airport users who

store their aircraft at the airport, while charging no fee to those who merely land at the airport. We

AFFIRM. 

I

R/T is a Delaware Limited Liability Corporation that owns a Cessna 182 aircraft based at

the Portage County Airport. The Portage County Regional Airport Authority owns the general

aviation public-use Portage County Airport located in Ravenna, Ohio. It adopted a fee structure for

the airport whereby aircraft based at the airport are charged an annual fee depending on weight and

the frequency of usage. The fee range is not large, and is therefore not strongly related to the impact

each aircraft has on the airport. The lightest aircraft used the fewest times is charged a fee of $4.17

a month, while the largest aircraft used the most times is charged $35.00 a month. Aircraft that land

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No. 07-3678 R/T 182, LLC v. Federal Aviation Admin. Page 2

at the airport, but are not based there, are not charged this fee. Other fees and charges apply, but

they are not at issue in this case. 

R/T filed a complaint with the FAA on November 18, 2005, charging that the fee structure

violated a provision of federal law that precludes unjust discrimination between airport users by

discriminating between based-users (those with aircraft based at the airport) and transient users. See

49 U.S.C. § 47107(a). After complaint, response, and submission of affidavits, the FAA dismissed

the complaint. R/T filed an administrative appeal on November 13, 2006, and the FAA affirmed the

dismissal in a Final Decision and Order dated March 30, 2007. The FAA found that even if the

Airport Authority could record all of the transient users, the process of billing and collection could

easily cost more than the fees generated, and therefore the airport was reasonable in not pursuing

transient users. The FAA supported this finding with the fact that airports are open to the public and

transient users may have no business relationship with the airport. Some airplanes for example

merely touch down and take off again for practice purposes. It therefore found that discriminating

between based-users and transient users was not “unjust.” 

II

The Federal Aviation Act and the Administrative Procedure Act provide the standards of

review for this case. Under 49 U.S.C. § 46110(c) this Court has authority to review findings of fact

by the FAA for “substantial evidence.” Substantial evidence requires only that degree of evidence

which could satisfy a reasonable fact-finder. Wilson Air Center, LLC v. Federal Aviation Admin., 372 F.3d 807, 813 (6th Cir. 2004). We review questions of law de novo, though some deference

may be owed where the agency is reasonably interpreting the statutes it is charged with

administering. Id.

R/T contends that the Airport Authority may not charge users based at the airport a fee while

imposing no fee on transient users because that amounts to unjust discrimination in violation of 49

U.S.C. § 47107(a)(1) (“the airport will be available for public use on reasonable conditions and

without unjust discrimination”) and 61 Fed. Reg. 32021(3)-(3.1) (fees may not unjustly discriminate

against aeronautical users or user groups) (airport. . . must apply a consistent methodology in

establishing fees for comparable aeronautical users). The term “unjust discrimination” is not

statutorily defined, but the agency has interpreted it to require a showing that a party similarly

situated to the complainant was treated preferentially. See Monaco Coach Corp. v. Eugene Airport, 2004 WL 3198205, *17 (FAA Jul. 27, 2004). We have accepted this definition in the past. See

Wilson, 372 F.3d at 819. It also accords with our own case law concerning discrimination. See, e.g.,

Mickey v. Zeidler Tool and Die Co., 2008 WL 245592, *3 (6th Cir. 2008) (holding in the

employment context that the employee must show the employer treated similarly situated,

non-protected employees more favorably). 

R/T would have us reject this definition based upon a dictionary definition of the terms

“unjust” (“lacking in fairness”) and “discrimination” (“making a distinction in favor or against based

upon group, class or category, rather than individual merit”), but we see no reason to reject the

agency’s interpretation. Clearly the airport is discriminating, but saying its decision lacks fairness

merely restates R/T’s assertion that it is unjust without getting us any closer to a reasoned resolution.

Using the “similarly situated” definition, by contrast, focuses our attention on those distinctions

between groups or individuals that are legitimate bases for discrimination, and those that are not.

R/T complains that the fee schedule discriminates between based-users – like itself – and

transient users. This distinction is unjust, it claims, because it is unrelated to use of the airport. In

terms of our legal framework, R/T is arguing that it is similarly situated to transient users who use

the airport just as much but are not charged. The FAA, however, found that these two groups are
No. 07-3678 R/T 182, LLC v. Federal Aviation Admin. Page 3

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R/T points to one user, Kent State, that would be easy to bill, but this does not undermine the conclusion that

transient users as a group are difficult to bill. 

not similarly situated: based-users have regular business contacts with the airport, while transient

users may merely touch down and take off again for practice purposes. This distinction is statutorily

relevant: 49 U.S.C. § 47107(a)(13)(A) recognizes the efficiency of billing and collection as

legitimate reasons for differentiating among users. The FAA accepted that it would cost more than

the revenue generated for the airport to attempt to bill transient users.1 Because the distinction

between based-users and transient users is statutorily relevant, we find no error in the FAA’s

decision. 

R/T next argues that the FAA’s March 30 Order is a “rule” and therefore subject to the notice

and comment procedures of the Administrative Procedure Act. See 5 U.S.C. § 553. R/T infers this

from the general applicability and policy implications of the FAA’s order: other airports would now

feel free to implement a similar fee schedule. However, it has long been settled that an agency may

announce new principles that will guide future action in an adjudicative proceeding. See Nat’l

Labor Relations Bd. v. Bell Aerospace Co., 416 U.S. 267, 294 (1974). We have held that “‘Orders’

are usually adjudicative in nature and apply to a particular group, whereas ‘rules’ are more

legislative in nature and have general applicability.” N. Am. Aviation Properties, Inc. v. Nat’l

Transp. Safety Bd., 94 F.3d 1029, 1030 (6th Cir. 1996). We have little difficulty identifying the

proceedings in this case as adjudicatory in nature. The process was initiated by a complaint filed

by R/T against the Airport Authority. The Airport Authority filed an answer and R/T replied with

affidavits. When the FAA found against R/T in a written opinion, R/T was able to file an

administrative appeal to the Associate Administrator for Airports, whose decision is final, and may

be appealed to this Court. All of these procedures reflect a process that is adjudicatory in nature and

applies to the named parties involved in the complaint. We find that this is an adjudication, and

therefore not subject to the notice and comment requirements of rule-making under the

Administrative Procedure Act. 

III

We find that the FAA’s decision holding that R/T is not similarly situated to transient users

is supported by substantial evidence. Furthermore, the FAA’s complaint procedure at issue is an

adjudicatory process, not a rule-making, and therefore does not have to abide by the notice and

comment provisions of the Administrative Procedure Act. We therefore AFFIRM the decision of

FAA.