St. John's United Church of Christ v. F.A.A.

• Decision Date: 21 March 2008
• Docket Number: No. 06-1386.,06-1386.
• Citation: 520 F.3d 460
• Parties: ST. JOHN'S UNITED CHURCH OF CHRIST, et al., Petitioners v. FEDERAL AVIATION ADMINISTRATION and Marion C. Blakely, Administrator, Respondents City of Chicago, Intervenor for Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

520 F.3d 460

ST. JOHN'S UNITED CHURCH OF CHRIST, et al., Petitioners v. FEDERAL AVIATION ADMINISTRATION and Marion C. Blakely, Administrator, Respondents City of Chicago, Intervenor for Respondent.

No. 06-1386.

United States Court of Appeals, District of Columbia Circuit.

Argued February 11, 2008.

Decided March 21, 2008.

On Petition for Review of an Order of the Federal Aviation Administration.

Joseph V. Karaganis argued the cause for petitioners. With him on the briefs were A. Bruce White, John W. Kalich, Robert E. Cohn, and Christopher T. Handman.

M. Alice Thurston, Attorney, U.S. Department of Justice, argued the cause for respondent. With her on the brief was Todd S. Aagaard, Attorney. Lisa E. Jones and John A. Bryson, Attorneys, entered appearances.

Benna R. Solomon, Deputy Corporation Counsel, Corporation Counsel of the City of Chicago, argued the cause for intervener. With her on the brief were Christopher M. Grunewald, Assistant Corporation Counsel, and Sean H. Donahue, David T. Goldberg, and Michael G. Schneiderman.

Before: ROGERS, BROWN and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge:

Petitioners seek review of the Federal Aviation Administration's (FAA's) grant of money to the City of Chicago, reimbursing costs of certain work performed as part of the City's expansion of O'Hare International Airport. We dismiss the petition for lack of standing.

I

Chicago plans on acquiring land in nearby Elk Grove Village and the Village of Bensenville for the expansion of O'Hare Airport. Petitioner Bensenville complains Chicago's acquisition will destroy its park-land and affordable housing while petitioner Elk Grove complains the acquisition will destroy many businesses and deprive it of tax revenue and other economic benefits. In addition, one of the project's runways will require Chicago to "relocate" St. Johannes Cemetery — a disturbance which petitioners St. John's United Church of Christ, Helen Runge, and Shirley Steele claim will substantially burden their religious exercise.

In an earlier case, the petitioners challenged the FAA's approval of the project's airport layout plan (ALP) — an order the FAA calls the "Record of Decision" (ROD) — and the FAA's letter of intent (LOI). Vill. of Bensenville v. FAA, 457 F.3d 52 (D.C.Cir.2006). The LOI established a 15-year schedule under which the FAA will reimburse Chicago for the Government's share of project costs, and stated the government's intention to obligate from future budget authority a maximum of $337 million, paid by annual grants of $20 to $29 million. Before issuing the LOI, the FAA considered whether the O'Hare project met the requirements for airport improvement project (AIP) grants. Analysis and Review of City of Chicago's Application for Letter of Intent AGL 06-01, at 8-9 (Nov. 18, 2005), 10 J.A. 5451-52. But "final application" of those requirements would occur when FAA made "a final decision on the award of a specific amount of funding." Id:

We dismissed petitioners' challenges to these findings, holding the LOI unreviewable because it was not an "order" under 49 U.S.C. § 46110(a).¹ The LOI was not an order because it was not final. The LOI did not obligate the government to pay the grants; Chicago still had to apply each year, and Congress still had to appropriate the money. Vill. of Bensenville, 457 F.3d at 68-69. In any event, petitioners lacked standing because vacating the LOI would not redress their injuries. Chicago could complete the project even without the $337 million — a mere fraction of the costs of the project. Id. at 69-70.

Chicago applied for the first annual grant in the middle of 2006. In September 2006, Chicago accepted FAA's offer of $29.3 million to reimburse Chicago for certain work performed on land not affecting the petitioners. The two concluded a standard grant agreement containing various conditions, among which Chicago must "complete all AIP funded projects without undue delays and in accordance with the terms" of the grant and FAA regulations. Terms and Conditions of Accepting Airport Improvement Grants 8 (June 2005), 10 J.A. 5692. About a year later, the FAA authorized Chicago to collect $1.3 billion in passenger facilities charges (PFC's) to help finance the O'Hare project. Notice of Passenger Facility Charge (PFC) Approvals and Disapprovals, 72 Fed.Reg. 61,204, 61,205-06 (Oct. 29, 2007).

Petitioners seek review of the single $29.3 million AIP grant. They claim that certain FAA determinations were flawed, and that the FAA violated RFRA.

II

To establish Article III standing, petitioners must show a "substantial probability" they have been injured, the FAA's grant to Chicago caused their injuries, and the court could redress those injuries. Sierra Club v. EPA 292 F.3d 895, 899 (D.C.Cir.2002). Because FAA's $29.3 million grant reimburses Chicago for completed work that did not affect the petitioners, how the grant causes their injuries is a mystery. Perhaps realizing this, petitioners try to characterize the order they challenge as "more than $2 billion in federally approved funding assistance." Petr.'s Br. 21. To reach this figure, petitioners add the $337 million LOI and the $1.3 billion in PFC's. They also add federal funding they expect Chicago will seek because of a $400 million cost overrun.

"It's clear," say petitioners, "Chicago cannot construct the [project] ... without massive AIP and PFC financial assistance." Id. at 20-21. There is, however, nothing "clear" about this. The LOI is not before the court. Chicago's acceptance of the first of the LOI's fifteen grants, does not authorize review of the fourteen grants the FAA has not yet offered.

Nor is the $1.3 billion in PFC's before the court.² Petitioners think otherwise because the determinations FAA made in awarding the AIP grant here are supposedly the same ones FAA makes when authorizing Chicago to collect PFC's. But the determinations are not the same. While a project is eligible for PFC funding when the project is for "airport development or airport planning," as the AIP statute uses those terms, the project need not meet the same standards for approving an AIP grant. Air Transp. Ass'n of Am. v. FAA, 169 F.3d 1, 9 (D.C.Cir.1999). Thus, an FAA order stating "AIP and PFC eligibility of projects is identical" does not support the petitioners. See Passenger Facility Charge, FAA Order 5500.1, at 51 (Aug. 9, 2001). That phrase simply means a project meeting the definition of "airport development or airport planning" is eligible for PFC funding.

Next, petitioners assert the grant agreement between FAA and Chicago "contains an FAA-imposed clause that compels Chicago to complete the [project] (necessarily destroying St. Johannes ... and park-lands, homes and businesses in Bensenville and Elk Grove Village)." Petr.'s Br. 21. Petitioners apparently focus on the following grant condition: Chicago "shall carry out and complete all AIP funded projects without undue delays." But the "[f]ailure to comply with grant conditions" can result only "in suspension or termination of the grant."...