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,
FEDERAL AVIATION ADMINISTRATION, Respondent.
for Review of a Decision of the Federal Aviation
Administration Agency No. FAA 2013-0988
WILLIAM PRYOR and JULIE CARNES, Circuit Judges, and ANTOON,
CARNES, CIRCUIT JUDGE.
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.
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.
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.
Congress Limits the Permissible Uses of Aviation Fuel Tax
Revenues to Aviation-Related Projects.
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)
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.
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 ...