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Clayton County v. Federal Aviation Administration

United States Court of Appeals, Eleventh Circuit

April 24, 2018

CLAYTON COUNTY, GEORGIA, CLAYTON COUNTY PUBLIC SCHOOLS, FOREST PARK, GEORGIA, RIVERDALE, GEORGIA, LOVEJOY, GEORGIA, MORROW GEORGIA, LAKE CITY, GEORGIA, JONESBORO, GEORGIA, COLLEGE PARK GEORGIA, Petitioners,
v.
FEDERAL AVIATION ADMINISTRATION, Respondent.

         Petition for Review of a Decision of the Federal Aviation Administration Agency No. FAA 2013-0988

          Before WILLIAM PRYOR and JULIE CARNES, Circuit Judges, and ANTOON, [*] District Judge.

          JULIE CARNES, CIRCUIT JUDGE.

         Title 49 U.S.C. § 47133 generally prohibits "[l]ocal taxes on aviation fuel" from being spent on anything but aviation. In 2014, the Federal Aviation Administration clarified that it interpreted § 47133's revenue-use restriction to apply to all state and local governments, regardless of whether they own or operate an airport. Notwithstanding § 47133's prohibition, Clayton County imposes a tax on aviation fuel sold at Hartsfield-Jackson Airport and shares the revenues with the cities within Clayton County-College Park, Forest Park, Jonesboro, Lake City, Lovejoy, Morrow, and Riverdale. These entities spend those tax revenues on local municipal projects unrelated to aviation. The Clayton County Public School system also levies a sales tax on aviation fuel sold at Hartsfield-Jackson and spends the proceeds on education. Although Hartsfield-Jackson is partially located in Clayton County, none of these taxing entities-Clayton County, the cities within Clayton County, or Clayton County Public Schools (collectively "Petitioners")- owns or operates the airport.

         In 2015, Petitioners submitted a plan to the FAA describing how they intended to come into compliance with the FAA's recently clarified interpretation of § 47133. In 2016, Petitioners backtracked from the conciliatory stance they took in 2015 and instead submitted an "Amendment" challenging the FAA's position that Petitioners could not legally spend tax revenue from aviation fuel on local projects unrelated to aviation. The FAA responded in a letter, restating the position it took in its 2014 policy clarification and expressing concern that Petitioners might not be in compliance. The FAA asked Petitioners to contact the FAA to discuss potential offsets and other methods for Petitioners to achieve compliance.

         Petitioners filed this lawsuit challenging the FAA's interpretation of § 47133 as set forth in the FAA's 2016 letter. We conclude, however, that we lack jurisdiction to consider the merits of Petitioners' arguments because the FAA's letter does not constitute final agency action.

         I. BACKGROUND

         A. Congress Limits the Permissible Uses of Aviation Fuel Tax Revenues to Aviation-Related Projects.

         In 1996, Congress enacted 49 U.S.C. § 47133, which generally prohibits local aviation fuel tax revenues from being spent on anything other than aviation. Pub. L. No. 104-264, 110 Stat. 3213, 3271 (1996). Section 47133(a) provides that:

Local taxes on aviation fuel (except taxes in effect on December 30, 1987) or the revenues generated by an airport that is the subject of Federal assistance may not be expended for any purpose other than the capital or operating costs of-
(1) the airport;
(2) the local airport system; or
(3) any other local facility that is owned or operated by the person or entity that owns or operates the airport that is directly and substantially related to the air transportation of passengers or property.

         In 1999, the FAA issued a policy statement interpreting the scope of § 47133. The FAA interpreted § 47133 to apply "to all airports that have received Federal assistance." 64 Fed. Reg. 7696, 7698 (1999). And it stated broadly that "State or local taxes on aviation fuel (except taxes in effect on December 30, 1987) are considered to be airport revenue subject to the revenue-use requirement." Id. at 7716. The FAA did not discuss whether its interpretation made any distinctions between taxes levied by "the owner or operator of the airport" (the airport ...


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