Village of Bensenville v. Federal Aviation Administration

Notice: This opinion is subject to formal revision before publication in the

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 5, 2006 Decided August 4, 2006

No. 05-1383

VILLAGE OF BENSENVILLE, ET AL.,

PETITIONERS

v.

FEDERAL AVIATION ADMINISTRATION,

RESPONDENT

CITY OF CHICAGO,

INTERVENOR FOR RESPONDENT

Consolidated with

No. 05-1456

On Petitions for Review of an Order of the

Federal Aviation Administration

Christopher T. Handman argued the cause for petitioners.

With him on the brief was Robert E. Cohn. Anthony R.

Picarello, Jr., Derek L. Gaubatz, Gregory G. Garre, and Jessica

2

L. Ellsworth entered appearances.

Robert L. Greene was on the brief for amici curiae

Advocates for Faith and Freedom, et al. in support of petitioners.

Mary A. Thurston, Attorney, U.S. Department of Justice,

argued the cause for respondent. With her on the brief were

Todd S. Aagaard and Lisa E. Jones, Attorneys.

Benna Ruth Solomon argued the cause for intervenor. With

her on the brief were Suzanne M. Loose, Sean H. Donahue,

Michael G. Schneiderman and David T. Goldberg.

Before: HENDERSON, ROGERS and GRIFFITH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

Opinion concurring in part and dissenting in part filed by

Circuit Judge GRIFFITH.

ROGERS, Circuit Judge: The principal issue in this appeal is

whether the Religious Freedom Restoration Act (“RFRA”), 42

U.S.C. § 2000bb et seq., requires strict scrutiny of a federal

agency’s approval of an airport layout plan incident to a

determination of eligibility for federal funding if the plan, when

implemented by a subdivision of a state, may burden religious

exercise. Because O’Hare International Airport, by some

measures “the busiest airport in the world,” Suburban O’Hare

Comm’n v. Dole, 787 F.2d 186, 196 (7th Cir. 1986), has been

plagued by delays in recent years, the City of Chicago plans to

expand and reconfigure the airport. The petitioners, two

Chicago suburbs, a church, and several individuals, challenge

the Federal Aviation Administration’s approval of the City’s

plan on the ground that the approval violates RFRA because the

3

approved runway configuration, which requires the relocation of

a church cemetery, is not the least restrictive means of satisfying

the government’s compelling interest in reducing delays.

We hold that any burden on the exercise of religion caused

by the City’s airport expansion plan is not fairly attributable to

the FAA. The Supreme Court has recognized that even in

instances in which the federal government plays some role,

constitutional standards do not attach to conduct by third parties

in which the federal government merely acquiesces. So too, a

federal agency’s determination that a City’s expansion plan is

eligible for federal funding does not render the City’s

implementation of the plan tantamount to federal action that is

the source of the burden on the free exercise of religion. The

expansion plan for the airport, which is owned by the City, was

prepared and will be implemented by the City, which is prepared

to proceed without federal funds if necessary, and RFRA does

not apply to burdens imposed by states or their subdivisions.

Hence, the court need not reach the question whether the FAA

has shown a compelling governmental interest in imposing a

burden on the free exercise of religion.

Additionally, the court lacks jurisdiction to consider the

petitioners’ challenge to the FAA letter expressing a non-

binding intention to obligate federal funding for the expansion

because the letter is not a final order. Accordingly, because the

petitioners’ remaining contentions are without merit, we deny

the petitions for review.

I.

A.

The Airport and Airway Improvement Act, 49 U.S.C. §§

47101 et seq. (“AAIA”), authorizes federal funding for airport

improvement projects and establishes the prerequisites for a

4

project to be eligible for funding. Congress established a

national transportation policy aimed at the efficient

transportation of passengers and property to ensure “the

expanding wealth of the United States, the competitiveness of

the industry of the United States, the standard of living, and the

quality of life.” Id. § 47101(b)(2). To those ends, the AAIA

requires that “airport construction and improvement projects that

increase the capacity of facilities to accommodate passenger and

cargo traffic be undertaken to the maximum feasible extent so

that safety and efficiency increase and delays decrease.” Id. §

47101(a)(7).

To establish a “safe, efficient, and integrated system of

public-use airports,” the Secretary of Transportation must

maintain a public airport development plan that includes the

“kind and estimated cost of eligible airport development.” Id.

§ 47103(a). More pertinently, pursuant to a delegation of

authority from the Secretary, see id. § 106(g), the FAA may

make project grants to a State, public agency, or private owner

of a public-use airport from the Airport and Airway Trust Fund

for airport development. See id. § 47104(a); see also id. §

47105(a), id. § 47102(19). To be eligible for federal grants, the

airport development must comply with standards set by the

FAA. See id. § 47105(b)(3). The FAA may approve an

application only if satisfied that there are funds to cover costs

not paid by the federal government, that the sponsor has

authority to carry out the project, and that the project is

consistent with state agency plans for the areas surrounding the

airport, will contribute to carrying out the AAIA’s purposes, and

will be completed without unreasonable delay. See id. §

47106(a).

In addition to the statutory requirements for specific

projects, a grant application may not be approved unless the

airport itself operates according to certain standards. See id. §

5

47107. Among these standards, the airport owner must

“maintain a current layout plan of the airport” that is approved

by the FAA. Id. § 47107(a)(16). The FAA must approve any

modified airport layout plan (“ALP”) before the owner of the

airport implements any changes. See id. § 47107(a)(16)(B); id.

§ 47104. When the approval of such a plan constitutes a “major

Federal action[] significantly affecting the quality of the human

environment” under the National Environmental Policy Act of

1969, 42 U.S.C. §§ 4321-4347 (“NEPA”), the FAA must

prepare an environmental impact statement (“EIS”) determining

the plan’s effect on the environment and considering reasonable

alternatives. See id. § 4332(C); Communities Against Runway

Expansion v. FAA, 355 F.3d 678, 681 (D.C. Cir. 2004); see also

49 U.S.C. § 47106(c).

Once an airport owner has an approved ALP, it may apply

for a Letter of Intent (“LOI”) to provide AAIA funding for the

project. Upon such application, the FAA “may issue a letter of

intent to the sponsor stating an intention to obligate from future

budget authority an amount.” Id. § 47110(e)(1). Any such

statement of intention, however, is non-binding on the federal

government. Id. § 47110(e)(3).

B.

In December 2002, the City, which owns and operates

O’Hare, submitted for FAA review an ALP designed to increase

capacity and decrease costly delays that were interfering with

O’Hare’s role as a major connecting hub. The City’s plan called

for realigning three of the seven existing runways and adding an

eighth runway. To accomplish the expansion, the plan would

require the City to acquire 440 acres of adjacent property,

including businesses and homes in the neighboring Villages of

Bensenville and Elk Grove. Further, the plan would require

relocation of two cemeteries: St. Johannes and Rest Haven.

6

Upon receiving the City’s application, the FAA prepared an

EIS that initially screened fifteen alternatives. After rejecting

many of the alternatives as implausible or insufficient means of

addressing the delays at O’Hare, and after a second screening

eliminated three more, the FAA compared the four remaining

alternatives, using computer software to perform simulations

that modeled how well each alternative would enhance capacity

and reduce delays. The FAA concluded that the City’s plan —

Alternative C — with the shortest average delay and $150

million savings in the five years following construction, was

clearly preferable to all others.

Members of St. Johannes Church and descendants of those

buried at the cemeteries objected that the relocation of the

cemeteries would substantially burden their exercise of religion

because of their belief in the physical resurrection of the bodies

of Christian believers. Citing their rights under RFRA, they

asked the FAA to demonstrate that Alternative C was the least

restrictive means of meeting the government’s compelling

interests in reducing delay and enhancing capacity. Although

expressing uncertainty over whether it was required to comply

with RFRA in this instance because the City was ultimately

responsible for designing and implementing the expansion plan,

the FAA proceeded as if RFRA did apply in order to avoid

litigation over the project. It found that the religious practices

of some petitioners would be substantially burdened if the

cemeteries were acquired and the bodies were relocated by the

City. It concluded — after examining the petitioners’ proposals

for avoiding the relocation of the cemeteries, each of which the

FAA characterized as derivative of the no-build and limited

build alternatives it had already considered and rejected, and

examining derivatives of its own that would limit effects on the

cemeteries, each of which the FAA determined posed significant

difficulties that would interfere with the goal of reducing delays

— that Rest Haven Cemetery could remain at its current location

7

by repositioning certain cargo facilities.

Therefore, in the final EIS, the FAA proposed to conclude

that Alternative C, as modified to protect Rest Haven Cemetery,

was the least restrictive means of achieving the federal

government’s compelling interest in increasing capacity and

reducing delay. After receiving additional comments, the FAA

reviewed the conclusions of the EIS in the Record of Decision

(“ROD”) and concluded that the approval of Alternative C as

modified satisfied RFRA because “it clearly performs so much

better than any other alternative.” The issuance of the ROD on

September 30, 2005 cleared the way for the City to implement

its plan without relocating Rest Haven Cemetery. Additionally,

in response to the City’s February 15, 2005 request for a LOI for

$300 million of Airport Improvement Program (“AIP”) funds

and $55.8 million of entitlement funds to go toward the first

construction the City would be doing to implement the ALP, the

FAA, upon making statutory findings, on November 21, 2005

issued a LOI expressing its intention to fund about $300 million

in discretionary funds and $37.2 million in entitlement funds

over a 15-year period. These petitions for review followed.

II.

The petitioners’ central challenge to the FAA’s approval of

the City’s ALP depends upon RFRA. In 1990, the Supreme

Court held in Employment Division v. Smith, 494 U.S. 872

(1990), that the Free Exercise Clause of the First Amendment to

the Constitution does not prohibit burdens on the exercise of

religion imposed by neutral laws of general applicability. See

id. at 879. In so doing, the Court declined to apply the

compelling interest balancing test set forth in Sherbert v. Verner,

374 U.S. 398 (1963), which required that governments

demonstrate that laws substantially burdening religious exercise

are supported by a compelling interest. See Smith, 494 U.S. at

8

882-85. Congress, seeking to secure a wider berth for religious

exercise, enacted RFRA, which aimed to reinstate the

compelling interest test in place of the neutrality standard

pronounced by the Court. See Religious Freedom Restoration

Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (1993) (prior

to 2000 amendment); see also S. REP. NO. 103-111, at 8 (1993),

as reprinted in 1993 U.S.C.C.A.N. 1892, 1897-98; H.R. REP.

103-88 (1993). In City of Boerne v. Flores, 521 U.S. 507

(1997), the Supreme Court held that RFRA was unconstitutional

as applied to the states because it was beyond Congress’s

remedial power to regulate states under Section 5 of the

Fourteenth Amendment to the Constitution. See id. at 536.

RFRA’s compelling interest test remained in effect as to the

federal government.1

1

In response to City of Boerne, Congress passed the

Religious Land Use and Institutionalized Persons Act (“RLUIPA”),

see Pub. L. No. 106-274, 114 Stat. 803 (2000) (codified at 42 U.S.C.

§ 2000cc et seq.), which again applies the compelling interest standard

to action by the states, but only as to the limited categories of

regulations affecting land use or institutionalized persons. Congress

grounded RLIUPA in its Commerce Clause and Spending Clause

authority. See 42 U.S.C. §§ 2000cc(a)(2)(A)-(B), 2000cc-1(b)(1)-(2).

Some of its applications have been upheld against constitutional

challenge. See Cutter v. Wilkinson, 544 U.S. 709 (2005). In RLIUPA,

Congress also amended RFRA to remove references to state and local

governments while preserving the law’s application to the federal

government. See 114 Stat. at 806; see also Cutter, 544 U.S. at 715

n.2. A RLIUPA claim against the City for its plan to acquire St.

Johannes Cemetery was dismissed by the District Court for the

Northern District of Illinois and is now pending before the Seventh

Circuit Court of Appeals. See St. John’s United Church of Christ v.

City of Chicago, 401 F. Supp. 2d 887 (N.D. Ill. 2005); St. John’s

United Church of Christ v. City of Chicago, No. 05-4418 (7th Cir.

filed Dec. 30, 2005).

9

RFRA provides that “Government shall not substantially

burden a person’s exercise of religion,” 42 U.S.C. § 2000bb-

1(a), unless application of the burden “is the least restrictive

means of furthering [a] compelling governmental interest,” id.

§ 2000bb-1(b)(2). “Government” is defined as “a branch,

department, agency, instrumentality, and official (or other

person acting under color of law) of the United States.” Id. §

2000bb-2(1). The petitioners maintain that the relocation of St.

Johannes Cemetery would substantially burden the religious

exercise of some of the petitioners by interfering with a sacred

site of worship and with the physical resurrection of those buried

there. In approving a new O’Hare ALP that would require the

cemetery’s relocation as eligible for federal funding, the FAA

violated RFRA, petitioners contend, because the FAA did not

demonstrate that Alternative C (even as modified) is the least

restrictive means of furthering the governmental interest in

increasing capacity and reducing delay.

As the FAA is undeniably an “agency . . . of the United

States,” id. § 2000bb-2(1), it is prohibited from substantially

burdening a person’s exercise of religion except when it can

meet the compelling interest test. Whether that prohibition is

implicated, however, depends on whether the FAA’s approval

of the City’s ALP is properly characterized as the source of what

the petitioners contend is a substantial burden placed on the free

exercise of religion.2 The City, as intervenor, in addition to

objecting that its plan does not burden petitioners under First

Amendment precedent, contends that the relocation of the

2

The City maintains that there is no burden on petitioners

under relevant First Amendment precedent. See, e.g., Lyng v.

Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 450

(1988). We need not decide that question, but will assume for

purposes of our analysis that the relocation of St. Johannes Cemetery

imposes a substantial burden.

10

cemetery does not implicate RFRA because the City, not the

FAA, is responsible for the imposition of the claimed burden on

religious exercise. Although “[i]ntervenors may only argue

issues that have been raised by the principal parties,” and the

petitioners object that the City’s contention that RFRA is not

implicated by the FAA’s action is not properly before this court,

the court retains “discretion [to] entertain arguments raised only

by an intervenor on review if they have been ‘fully litigated in

the agency proceedings and [are] potentially determinative of

the outcome of judicial review.’” Nat’l Ass’n of Regulatory

Util. Comm’rs v. ICC, 41 F.3d 721, 729-30 (D.C. Cir. 1994)

(quoting Synovus Fin. Corp. v. Bd. of Governors of the Fed.

Reserve Sys., 952 F.2d 426, 433 (D.C. Cir. 1991)). The court is

particularly solicitous of intervenors’ arguments in cases in

which the intervenor’s success before the agency forecloses it

from petitioning for review and the issue raised logically

precedes the issues in dispute between the principal parties. See

id. at 730. The City, and the issue it raises, satisfy those criteria.

The court, therefore, will consider the FAA’s responsibility for

the burden on religious exercise.

To determine whether the burden on religious exercise can

be properly attributed to the FAA, the petitioners suggest that

the court look to the fact that the FAA’s role in approving the

ALP constitutes a “major Federal action[]” for purposes of

NEPA. 42 U.S.C. § 4332(C); see 40 C.F.R. § 1508.18(b)(4).

From this perspective, because the FAA must answer for the

effects of its decision on the environment, it must also answer

for the effects on religious exercise. NEPA broadly applies to

all “projects and programs entirely or partly financed, assisted,

conducted, regulated, or approved by federal agencies.” 40

C.F.R. § 1508.18(a). “Major Federal action” is defined to

“includ[e] actions with effects that may be major and which are

potentially subject to Federal control and responsibility,”

“includ[ing] the circumstance where the responsible officials fail

11

to act.” Id. § 1508.18. Applying NEPA’s sweeping definitions

would undoubtedly subject the FAA’s approval of the City’s

ALP and its intention to provide partial funding for the O’Hare

expansion to the strictures of RFRA.

This approach has some facial appeal. In aviation, as in

many fields, the federal government plays a significant role. Cf.

Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292, 303 (1944).

The Illinois legislature noted as much when endorsing the

O’Hare expansion plan in “recogniz[ing] that . . . the planning,

construction, and use of the O’Hare Modernization Program will

be subject to intensive regulatory scrutiny by the United States

and that no purpose would be served by duplicative or redundant

regulation of the safety and impacts of the airport or the O’Hare

Modernization Program.” 620 ILL. COMP. STAT. 65/5(a)(8)

(2003). Given the FAA’s authority to guide airport development

nationwide, one might be tempted to use NEPA to hold the FAA

accountable for nearly every aspect of development at the

airports that it regulates. But the Supreme Court has instructed

that “courts must look to the underlying policies or legislative

intent in order to draw a manageable line between those causal

changes that may make an actor responsible for an effect and

those that do not.” Metro. Edison Co. v. People Against Nuclear

Energy, 460 U.S. 766, 774 n.7 (1983). Under that analysis, it

becomes clear that NEPA’s broad application is ill-suited to

RFRA’s statutory regime.

Although RFRA speaks broadly of “government,” with

RFRA Congress intended to “restore” the standard by which

federal government actions burdening religion were to be

judged, see 42 U.S.C. § 2000bb(b)(1); City of Boerne, 521 U.S.

at 532, not to expand the class of actions to which the standard

would be applied, see Hall v. Am. Nat. Red Cross, 86 F.3d 919,

921 (9th Cir. 1996) (quoting S. REP. NO. 103-111, at 12, as

reprinted in 1993 U.S.C.C.A.N. at 1901). The Senate Judiciary

12

Committee reported that “the purpose of [RFRA] is only to

overturn the Supreme Court’s decision in Smith,” not to

“unsettle other areas of the law.” S. REP. NO. 103-111, at 12, as

reprinted in 1993 U.S.C.C.A.N. at 1902. RFRA was not meant

to “expand, contract or alter the ability of a claimant to obtain

relief in a manner consistent with the Supreme Court’s free

exercise jurisprudence under the compelling governmental

interest test prior to Smith.” Id. To the extent RFRA was

designed to restore a legal standard rather than to extend the

compelling interest test to the far reaches of government

activities, importing NEPA’s applicability into RFRA would

give the statute far greater breadth than Congress ever intended.

See Hall, 86 F.3d at 921. Moreover, to do so would

fundamentally recast federal-state relations in a manner that

Congress has yet to indicate that it intended.

RFRA was enacted to reestablish a constitutional test with

the expectation that courts would look to constitutional

precedent for guidance. See S. REP. NO. 103-111, at 8, as

reprinted in 1993 U.S.C.C.A.N. at 1898. The petitioners can

point to no indication of a contrary expectation and we have

found none. Given that background, it is not surprising then that

the proper inquiry is one classically reserved for constitutional

jurisprudence. Whether the federal government can be

characterized as responsible for the relocation of St. Johannes

Cemetery under RFRA requires the same analysis normally

necessary to determine whether the FAA could be held

responsible for an alleged infringement of constitutional rights.

Cf. Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982). Modified

to apply to this inquiry, the question the court must decide is

whether “there is a sufficiently close nexus between the [federal

government] and the challenged action of [the City] so that the

action of the latter may be fairly treated as that of the [federal

government] itself.” Blum v. Yaretsky, 457 U.S. 991, 1004

(1982) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345,

13

351 (1974)). “The purpose of this requirement,” the Supreme

Court explains, “is to assure that constitutional standards are

invoked only when it can be said that the State [here, the FAA]

is responsible for the specific conduct of which the plaintiff

complains.” Id. Similarly, by conducting a state action inquiry

here, the court can assure that RFRA’s heightened standard is

only applied when it can be said that the federal government is

responsible for the burden on religious exercise. See Sutton v.

Providence St. Joseph Med. Ctr., 192 F.3d 826, 834-35 (9th Cir.

1999); see also Hall, 86 F.3d at 921-22.3

3

Our dissenting colleague, although agreeing the court must

look to pre-Smith Free Exercise Clause cases in determining RFRA’s

bounds, misreads those cases, stretching them beyond reason to

eliminate virtually any limit on RFRA’s application. Relying

primarily on pre-Smith cases barring “indirect” burdens on free

exercise, see Dissenting Op. at 4-5, the dissent fails to acknowledge

that the word “indirect” in those cases referred to the nature of the

burden imposed on religious exercise, not to the identity of the entity

imposing the burden. In Sherbert, the Supreme Court held that the

government’s denial of benefits to an individual because of conduct

demanded by her religious beliefs constituted a burden despite the fact

that the burden was only “an indirect result” as “no criminal sanctions

directly compel[led]” her to violate her religious beliefs. 374 U.S. at

403. “[T]he fact that no direct restraint or punishment [was]

imposed,” id. at 404 n.5, was immaterial because “the pressure upon

her to forego [her religious] practice [was] unmistakable,” id. at 404.

This view of what constitutes an “indirect” burden was confirmed in

Thomas v. Review Bd. of the Indiana Employment Security Division,

450 U.S. 707 (1981), in which the Court explained, “Where the state

conditions receipt of an important benefit upon conduct proscribed by

a religious faith, . . . thereby putting substantial pressure on an

adherent to modify his behavior and to violate his beliefs, a burden

upon religion exists. While the compulsion may be indirect, the

infringement upon free exercise is nonetheless substantial.” Id. at

717-18; accord Hobbie v.Unemployment Appeals Comm’n of Fla.,

480 U.S. 136, 141 (1987). These cases tell us that before Smith the

14

This case presents an unusual state action question because

the regulated party is a separate sovereign rather than a private

entity. Despite the rarity of this situation (inasmuch as federal

and state governments are generally bound by the same

constitutional standards), the analysis proceeds with the same

“necessarily fact-bound inquiry,” Lugar v. Edmonson Oil Co.,

457 U.S. 922, 939 (1982), as if the federal government were

regulating the decision of a private entity, with the City standing

in the place of a private party. See, e.g., Kitchens v. Bowen, 825

F.2d 1337 (9th Cir. 1987), cert. denied, 485 U.S. 934 (1988).4

government was not free to burden religious exercise through less

direct restraints than criminal sanctions or fines. They tell us nothing

about the constitutional values in play when such a restraint is

imposed by a third party who is, in turn, regulated by the government.

In the cited cases, there were only two actors: the government and the

individual protesting a burden on religious liberty. Therefore, pre-

Smith free exercise cases do not support creative exploitation of the

ambiguity of the word “indirect” to make the government responsible

for a burden imposed by another that the government does not lift.

4

Our colleague’s conclusion that the state action doctrine is

not useful in cases where the government is directly sued, see

Dissenting Op. at 2-3, is undermined by the Supreme Court’s use of

the state action inquiry not only to determine whether a third party’s

actions should be held to government standards, see, e.g., Moose

Lodge v. Irvis, 407 U.S. 163 (1972), but also to determine whether the

government, when challenged directly, should be held responsible for

the actions of a third party, see, e.g., Burton v. Wilmington Parking

Authority, 365 U.S. 715 (1961); Public Utils. Comm’n v. Pollak, 343

U.S. 451, 461-63 (1952); see also Kitchens v. Bowen, 825 F.2d 1337

(9th Cir. 1987). The dissent provides no alternative limiting principle,

concluding only that “indirect” burdens on religious exercise are

sufficient, see Dissenting Op. at 2, and that “approval” of a third

party’s actions constitutes an indirect burden, see id. at 5-6. In a

system of pervasive licensing and regulation by the federal

government, our colleague’s unbounded approach would mean that as

15

The Supreme Court has held that “[t]he mere fact that a

business is subject to state regulation does not by itself convert

its action into that of the State.” Jackson, 419 U.S. at 350.

Furthermore, “a State normally can be held responsible for a

private decision only when it has exercised coercive power or

has provided such significant encouragement, either overt or

covert, that the choice must in law be deemed to be that of the

State.” Blum, 457 U.S. at 1004. “Mere approval of or

acquiescence in the initiatives of a private party is not sufficient

to justify holding the State responsible for those initiatives . . .

.” Id. at 1004-05; see also Am. Mfrs. Mutual Ins. Co. v.

Sullivan, 526 U.S. 40, 52 (1999); Moose Lodge v. Irvis, 407 U.S.

163, 177 (1972). The receipt of public funds, even of “virtually

all” of an entity’s funding, is not sufficient to fairly attribute the

entity’s actions to the government. See Rendell-Baker, 457 U.S.

at 840-41 (citing Blum, 457 U.S. at 1011).

In analyzing whether the alleged burden on religious

exercise is fairly attributable to the FAA, we “begin[] by

identifying ‘the specific conduct of which the plaintiff

complains.’” Am. Mfrs. Mut. Ins. Co., 526 U.S. at 51 (quoting

Blum, 457 U.S. at 1004). The specific conduct that the

petitioners challenge is the seizure and relocation of St.

Johannes Cemetery. Consequently, the court must decide

individuals whose religious exercise was burdened by private parties

grasped for a federal decision somewhere in the vicinity they could

deem to be the “indirect” cause of the burden, every federal licensee

would become the state for purposes of RFRA, as the government

through its inaction granted “approval” to their decisions. The specter

of endless application of strict scrutiny to private actions will not be

illusory if those potential plaintiffs are as willing as the dissent to label

government involvement as “extensive[],” id. at 1, or “intense[],” id.

at 7, even when the private party invents, designs, advocates, and

implements the action that imposes the burden on free exercise.

16

whether the FAA’s role in the potential disinterment at St.

Johannes is “[m]ere approval of or acquiescence in” the City’s

plan or whether the FAA “has exercised coercive power or has

provided such significant encouragement, either overt or covert,

that the choice must in law be deemed to be that of the [FAA].”

Blum, 457 U.S. at 1004. Fairly characterizing the level of

federal governmental involvement can be accomplished “[o]nly

by sifting facts and weighing circumstances.” Moose Lodge,

407 U.S. at 172. “[A]bsent government coercion or significant

government encouragement of the measure under inspection,”

Lunceford v. Dist. of Columbia Bd. of Educ., 745 F.2d 1577,

1581 (D.C. Cir. 1984), the Supreme Court has held that the

federal government may not be held responsible for a measure

taken by a private actor.

In Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190

(D.C. Cir. 1991), this court quoted an EIS that described the

FAA’s role in airport development:

In the present system of federalism, the FAA does not

determine where to build and develop civilian airports,

as an owner/operator. Rather, the FAA facilitates

airport development by providing Federal financial

assistance, and reviews and approves or disapproves

revisions to Airport Layout Plans at Federally funded

airports. Id. at 197.

That quotation accurately depicts the FAA’s involvement here,

where it reported that “[t]he FAA did not design the [ALP], nor

can it compel the City to implement some or all of it.” If the

owner or operator proposing to modify an airport’s layout wants

to qualify for federal funding, certain requirements must be met.

Under the AAIA, ALPs must “be in a form the [FAA]

prescribes,” 49 U.S.C. § 47107(a)(16)(A), and the airport’s

operator may “not make or allow any alteration in the airport or

17

any of its facilities if the alteration does not comply with the

plan the [FAA] approves,” id. § 47107(a)(16)(C); see also

Communities Against Runway Expansion, 355 F.3d at 681.

Therefore, if the City wishes to receive any federal funding, it

cannot relocate the cemetery without the approval of the FAA.

But the FAA’s peripheral role in the City’s relocation of St.

Johannes is not sufficient to hold the agency responsible for

purposes of RFRA. Even under NEPA, “a ‘but for’ causal

relationship is insufficient to make an agency responsible for a

particular effect.” Dep’t of Transp. v. Pub. Citizen, 541 U.S.

752, 767 (2004). The City — not the FAA — is the cause of

any burden on religious exercise because of its role as inventor,

organizer, patron, and builder of the O’Hare expansion. The

City designed the ALP with its attendant impact on the

cemeteries. The City submitted the plan to the FAA to retain

O’Hare’s eligibility for federal funding. Before the FAA, the

City fought for approval of its plan. The City will provide the

lion’s share of the funding for the modernization project; the

federal government will cover only twelve percent of the cost of

Phase I. The City intends to provide all of the funding through

other sources if the federal funds are not forthcoming. And at

the end of the day, the City will carry out the seizure and

physical relocation of St. Johannes Cemetery.

Our dissenting colleague would find that the FAA did more

than merely approve the ALP because of its thorough

consideration of alternatives pursuant to NEPA. See Dissenting

Op. at 6-7. It is true that the FAA was careful in reviewing the

harms to the environment and the benefits to the flying public of

approving the City’s plan. But the measured approach the FAA

took in approving the City’s ALP does not make the City’s plan

an action of the federal government. The Supreme Court has

never held that the government becomes responsible for the

actions of a third party due to the length or intensity of its

18

attention to the actions of the party before approval. Now that

the FAA has approved the ALP, the FAA has no authority to

demand that the City build the projects described therein.

Earlier in the process, there is no indication that the FAA

“exercised coercive power” or “provided . . . significant

encouragement,” Blum, 457 U.S. at 1004, that provoked the City

to choose a plan that would harm the cemetery. Indeed, the only

significant modification to the ALP encouraged by the FAA was

the rescue of Rest Haven Cemetery spurred by the FAA’s

assumption that it was bound by RFRA. Had this course of

events played out differently, with the FAA ordering the change

responsible for the burden or playing some greater role in the

design of the ALP, perhaps there might be a valid claim under

RFRA. But that level of responsibility is not present here.5

To the contrary, the FAA’s role as regulator is similar to

that in many cases where the Supreme Court has declined to find

5

In focusing on the fact that RFRA extends without limit

because it “applies to all federal law, and the implementation of that

law,” 42 U.S.C. § 2000bb-3(a), and that the FAA’s approval of the

City’s ALP as eligible for federal funding was “implementation of” a

federal statute, the AAIA, the dissent begs the question whether the

FAA’s approval can be fairly characterized as responsible for the

burden designed and imposed by the City. At no point does the

dissent grapple with the question “whether government has placed a

substantial burden on the observations of a central religious belief or

practice,” Hernandez v. CIR, 499 U.S. 677, 699 (1989), or whether

some other actor should bear the blame for that burden. Rather than

“try[ing] to plot a line between state action subject to . . . scrutiny and

private conduct (however exceptional) that is not,” Brentwood

Academy v. Tenn. Secondary School Athletic Ass’n, 531 U.S. 288, 295

(2001), the dissent has eviscerated that line in toto. Fortunately, the

Supreme Court has applied the state action inquiry in a number of

contexts, noting that “examples may be the best teachers,” id. at 296,

providing this court with guidance with which to address this question.

19

state action. See, e.g., Rendell-Baker, 457 U.S. at 841-42. For

instance, in Moose Lodge, 407 U.S. 163, the Court held that a

state’s issuance of a liquor license to a private club was

insufficient to attribute the club’s refusal to serve an

African-American to the state. See id. at 176-77. And in

Jackson v. Metropolitan Edison Company, the Court held that

the state’s utilities commission was not sufficiently connected

with a privately owned utility’s decision to terminate electric

service to apply constitutional standards. See Jackson, 419 U.S.

at 358-59. The Supreme Court observed that “governmental

regulation of private utilities is such that a utility may frequently

be required by the state regulatory scheme to obtain approval for

practices a business regulated in less detail would be free to

institute without any approval from a regulatory body,” and that

approval “where the commission has not put its own weight on

the side of the proposed practice by ordering it, does not

transmute a practice initiated by the utility and approved by the

commission into ‘state action.’” Id. at 357. “At the most,” the

Court labeled the commission’s action a “failure to overturn this

practice” that gave the utility the freedom to decide whether to

employ it. Id. Similarly, despite the FAA’s broad regulatory

power to approve ALPs as an incident to determining a

development project’s eligibility for federal funding, the City’s

“exercise of the choice allowed by [the FAA] where the

[challenged] initiative comes from [the City] and not from the

[FAA] does not make its action in doing so ‘state action.’” Id.

(citation omitted).

In analyzing cases in which the Supreme Court found no

state action in the choices of heavily regulated entities, this court

found critical “the interposition of the independent judgment of

a private party between the act that allegedly resulted in a

constitutional deprivation and the decision of the state to accept

that decision and continue funding the private activities.”

Kolinske v. Lubbers, 712 F.2d 471, 480 (D.C. Cir. 1983). Here,

20

it was the “conduct of [the City] exercising independent

judgment that yielded the contested result.” Id. Where the FAA

“cannot be said to in any way foster or encourage,” Moose

Lodge, 407 U.S. at 176-77, the burden on religious exercise, “the

simple device of characterizing the [FAA]’s inaction as

‘authorization’ or ‘encouragement,’” Flagg Bros., Inc. v.

Brooks, 436 U.S. 149, 164-65 (1979), is insufficient to justify

imposition of RFRA’s compelling interest test. See also Am.

Mfrs. Mut. Ins. Co., 526 U.S. at 53-54. The burden imposed on

religious exercise by the City’s choices with the mere approval

or acquiescence of the FAA does not require the FAA to

demonstrate a compelling interest. See Blum, 457 U.S. at 1004.

Our dissenting colleague errs in concluding that mere

approval is sufficient to hold the government responsible for the

actions of a third party. It is plainly incorrect to state that “both

the Supreme Court and this [c]ourt held, prior to Smith, that a

federal agency’s approval can be the ‘source’ of a burden on

religious exercise.” Dissenting Op. at 5. In the cases cited by

the dissent – Lyng v. Northwest Indian Cemetery Protective

Ass’n, 485 U.S. 439 (1988), and Wilson v. Block, 708 F.2d 735

(D.C. Cir. 1983) – the courts held that the government action did

not constitute a burden on religious exercise within the meaning

of the First Amendment. Lyng, 485 U.S. at 447; Wilson, 708

F.2d at 745. Not even the quoted dicta from those decisions

supports the notion that government acquiescence in another

actor’s decision justifies finding that the government has

violated the Constitution. In Lyng, the federal government

proposed building a road and harvesting timber on federal land

where Indians traditionally practiced their religion. See Lyng,

485 U.S. at 442-43. The Supreme Court merely noted “that the

Government’s proposed actions will have severe adverse effects

on the practice of their religion.” Id. at 447. The Court never

addressed the question that the dissent claims that it did: whether

“approval by a federal agency of third party action can be

21

subject to a free exercise challenge.” Dissenting Op. at 6. And

the Court had no reason to do so, because the case had nothing

to do with “approval by a federal agency of a third party action.”

Lyng never mentions any party besides the government, because

“the Forest Service [would] build a 6-mile paved segment”

through the sacred area, id. at 442, and “the Forest Service

adopted a management plan allowing for the harvesting of

significant amounts of timber,” id. at 443. No third party was

involved.

Similarly, Wilson involved a challenge to a federal

governmental decision about what to do with federal land.

There, the federal government proposed to allow private

interests to develop ski facilities on federal land used for

religious practice by several Indian tribes. See Wilson, 708 F.2d

at 738. This court merely noted that the “construction approved

by the [government] . . . will cause the plaintiffs spiritual

disquiet.” Id. at 742. Lyng and Wilson involved the

government’s use of its own land rather than the government’s

regulation of a third party’s use of the third party’s land.

Therefore, even if Lyng and Wilson had dealt with the question

of who was responsible for the burden on religious exercise

(which they did not), they would not apply here. The Supreme

Court “has never held that a [government]’s mere acquiescence

in a private action converts that action into that of the

[government].” Flagg Bros., 436 U.S. at 164. We decline our

dissenting colleague’s invitation to do so today.

That the regulated party here is a government (i.e., a part of

a sovereign State,) heightens our hesitancy to apply RFRA’s

compelling interest test. To do so would subject the City’s

airport-building plans to “the most demanding test known to

constitutional law.” City of Boerne, 521 U.S. at 534. In this

case, state and local governments would again be hampered by

RFRA’s “intrusion into the States’ traditional prerogatives and

22

general authority to regulate for the health and welfare of their

citizens.” Id. In City of Boerne, the Supreme Court rejected

RFRA’s “intrusion at every level of government,” id. at 532,

observing that RFRA would exact substantial costs “both in

practical terms of imposing a heavy litigation burden on the

States and in terms of curtailing their traditional general

regulatory power,” id. at 534. Applying RFRA indirectly, by

forcing the FAA rather than the courts to curtail the state’s

traditional powers, would exact those costs just as surely as

applying RFRA directly to the states. Whether Congress might

exact those costs through its power to regulate commerce or

place conditions on federal spending is a question the court need

not decide because Congress has not attempted such a feat. See

O’Bryan v. Bureau of Prisons, 349 F.3d 399, 401 (7th Cir.

2003). If Congress seeks to alter so dramatically the balance of

power between states and the federal government, it must state

clearly its intention to do so. See Vermont Agency of Natural

Res. v. United States ex rel. Stevens, 529 U.S. 765, 787 (2000);

Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991). Because the

relocation of St. Johannes Cemetery cannot be fairly attributed

to the actions of the FAA, the petitioners’ RFRA claim fails.

III.

The petitioners also seek vacation of the Letter of Intent

expressing the FAA’s intention to obligate federal funds to carry

out the O’Hare expansion once the City submits grant

applications for approval. The petitioners contend the FAA

failed to make essential findings mandated by statute.

To begin, the court must determine whether it has

jurisdiction to address a challenge to the LOI. See Citizens for

the Abatement of Aircraft Noise v. Metro. Wash. Airports Auth.,

917 F.2d 48, 53 (D.C. Cir. 1990). Section 46110(a) of the

AAIA provides that “a person disclosing a substantial interest in

23

an order issued by the Secretary of Transportation . . . in whole

or in part under . . . part B . . . may apply for review of the order

by filing a petition in [this court].” A LOI is issued under Part

B. See id. § 47110(e). The question remains, however, whether

a LOI is an “order” at all, much less a final order subject to

judicial review.

Few courts have had the opportunity to address what

constitutes an “order” under § 46110(a), but many, including

this one, see City of Rochester v. Bond, 603 F.2d 927, 932-33

(D.C. Cir. 1979), have interpreted the statutory section’s

predecessor, 49 U.S.C. § 1486 (1976). See Aerosource, Inc. v.

Slater, 142 F.3d 572, 577 (3d Cir. 1998) (collecting cases). In

doing so, the courts have concluded that an “order” must possess

the quintessential feature of agency decisionmaking suitable for

judicial review: finality. See Aerosource, 142 F.3d at 577-78;

see also City of Rochester, 603 F.2d at 932-33; Air Cal. v. Dep’t

of Transp., 654 F.2d 616, 622 (9th Cir. 1981). The Supreme

Court has explained:

As a general matter, two conditions must be satisfied

for agency action to be “final”: First, the action must

mark the “consummation” of the agency’s

decisionmaking process, Chicago & Southern Air

Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113

(1948) — it must not be of a merely tentative or

interlocutory nature. And second, the action must be

one by which “rights or obligations have been

determined,” or from which “legal consequences will

flow,” Port of Boston Marine Terminal Assn. v.

Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71

(1970).

Bennett v. Spear, 520 U.S. 154, 177-178 (1997). Therefore, the

outcome of this inquiry depends upon the place of the LOI in the

24

FAA’s decisionmaking process and upon its precise legal effect.

A LOI is an odd creature of statute that, unlike other more

definitive agency decisions, merely “stat[es] an intention to

obligate from future budget authority an amount.” 49 U.S.C. §

47110(e)(1). “A letter of intent . . . is not an obligation of the

Government . . . and the letter is not deemed to be an

administrative commitment for financing.” Id. § 47110(e)(3).

Instead, a LOI is a planning document that “establish[es] a

schedule under which the [FAA] will reimburse the sponsor for

the Government’s share of allowable project costs, as amounts

become available.” Id. § 47110(e)(1). It does not complete the

agency’s decisionmaking process, as the City is required to file

a further grant application for approval before the FAA will be

obligated to disburse the funds described in the LOI. See id. §

47105. Thus, not only is the funding decision contingent on

congressional appropriation, it also will require further

administrative process. It follows that the LOI is non-final

because it “does not itself adversely affect [the petitioners] but

only affects [their] rights adversely on the contingency of future

administrative action.” DRG Funding Corp. v. Sec’y of Hous.

and Urban Dev., 76 F.3d 1212, 1214 (D.C. Cir. 1996) (quoting

Rochester Tel. Corp. v. United States, 307 U.S. 125, 130

(1939)).

Moreover, the LOI is non-final because it does not impose

an obligation, deny a right, or otherwise fix some legal

relationship. See Reliable Automatic Sprinkler Co. v. Consumer

Prod. Safety Comm'n, 324 F.3d 726, 731 (D.C. Cir. 2003). The

statutory text is clear in this regard. When asked during oral

argument what the LOI meant to the City, counsel for the City

helpfully responded that it is a planning tool that enables the

City to approach financial partners for private funding for the

development plan. Although airports and their financiers may

25

rely on LOIs as planning tools, this provides the court with no

basis to conclude that the LOI establishes a right or obligation

when the statute explicitly denies that the LOI is an “obligation”

or a “commitment.” Id. § 47110(e)(3). “Finality resulting from

the practical effect of an ostensibly non-binding agency

proclamation is a concept we have recognized in the past,” but

“if the practical effect of the agency action is not a certain

change in the legal obligations of a party, the action is non-final

for the purpose of judicial review.” Nat’l Ass’n of Home

Builders v. Norton, 415 F.3d 8, 15 (D.C. Cir. 2005). The LOI

has no effect absent two conditions precedent: FAA approval of

a further grant application by the City and congressional

appropriation of funds. The noncommittal language of § 47110

deprives a LOI of the force necessary to make it a final order

that may be judicially reviewed because it has no “direct and

appreciable legal consequences.” Bennett, 520 U.S. at 178.

Therefore, the court is without jurisdiction to review issuance of

the LOI under 49 U.S.C. § 46110.

Even were the nature of the commitment evidenced by the

LOI such that the court could find that it had jurisdiction, the

petitioners’ injury is not redressable by a decision vacating the

LOI because the O’Hare ALP would go forward without the

LOI funds. “The redressability inquiry poses a simple question:

‘If plaintiffs secured the relief they sought, would it redress their

injury’?” Wilderness Soc. v. Norton, 434 F.3d 584, 590 (D.C.

Cir. 2006) (quoting Mountain States Legal Found. v. Glickman,

92 F.3d 1228, 1233 (D.C. Cir. 1996)) (alterations omitted).

Thus, for purpose of determining the petitioners’ standing, the

court must decide whether “the practical consequence of

[vacating the LOI] would amount to a significant increase in the

likelihood that [the petitioners] would obtain relief that directly

redresses the injury suffered.” Utah v. Evans, 536 U.S. 452, 464

(2002). Or in concrete terms, would the City develop O’Hare as

planned without the $337 million in federal funding set forth in

26

the LOI?

The petitioners maintain that the LOI funding is vital

because although the major airlines at O’Hare have agreed to the

Phase I business plan, the airlines’ final approval is contingent

on the City receiving $300 million in AIP discretionary funds.

Indeed, the FAA’s Inspector General reported, “If the AIP funds

are not granted, the City will have to renegotiate approval of

Phase 1 with the airlines.” That same report makes clear,

however, that “[i]f any shortfalls in funding or increases in

project costs materialize, the City has indicated it plans to make

up the funding/cost difference by issuing additional bonds.” The

FAA maintains that vacating the LOI would not affect the City’s

ability to complete the project because practically, the LOI funds

only represent a tenth of the funding of the Phase I Airfield, and

legally, nothing would preclude the City from buying the

property and asking for a federal reimbursement grant later. See

49 U.S.C. § 47110(c)(1); Respondent’s Br. at 72. Even if the

City were permanently deprived of federal funds, it could issue

more revenue bonds, which would increase its costs by a

relatively insignificant margin. Based on a number of studies of

the project’s financial feasibility, the FAA has determined that

removing the LOI funds would not imperil the project. The City

agrees, stating that other traditional sources of airport financing

are sufficient to fund the project even if the LOI funds are

withdrawn.

Although the City’s agreement with the major airlines at

O’Hare might require further negotiations were the LOI vacated,

renegotiations with the airlines do not create “a significant

increase in the likelihood,” Utah v. Evans, 536 U.S. at 464, that

the project would be scuttled altogether rather than merely

delayed. The relatively minor role of the LOI dollars in funding

Phase I of the O’Hare expansion, the fact that the City could

return to the FAA for a grant in a new application, and the

27

existence of alternative sources of funding means that vacating

the LOI is unlikely to redress the petitioners’ injury. Therefore,

because the petitioners do not satisfy the redressability

requirement of Article III standing, the court cannot reach the

merits of their challenge to the LOI.

IV.

Finally, the petitioners present a variety of administrative

law challenges to the FAA’s decisionmaking process. They

contend that the FAA (1) used stale and unreliable data in a

manner arbitrary, capricious, and contrary to law under the

Administrative Procedure Act, 5 U.S.C. §§ 701-706, and NEPA,

and (2) violated the Due Process Clause of the Fifth Amendment

by denying them fair decisionmaking procedures. Neither

contention has merit.

A.

“A party seeking to have a court declare an agency action

to be arbitrary and capricious carries ‘a heavy burden indeed.’”

Wisconsin Valley Improvement v. FERC, 236 F.3d 738, 745

(D.C. Cir. 2001)(quoting Transmission Access Policy Study

Group v. FERC, 225 F.3d 667, 714 (D.C. Cir. 2000)). It must

show that the agency has failed to consider relevant factors, see

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,

416 (1971), has made a clear error in judgment, see id., or has

failed to “articulate a satisfactory explanation for its action

including a ‘rational connection between the facts found and the

choice made,’” Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting

Burlington Truck Lines v. United States, 371 U.S. 156, 168

(1962)).

The petitioners contend that the FAA erred in using an

unreasonably short period of evaluation to gauge delay savings

28

benefits by ending its evaluation in 2018, just five years after the

project’s planned completion. They maintain that a five-year

time horizon is at odds with FAA Order 1050.1E, which states

that the FAA “usually select[s]” a timeframe lasting until “5 to

10 years after implementation.” Needless to say, a “build out

plus five year” timeframe is consistent with an order

recommending timeframes “5 to 10 years after implementation.”

But the petitioners also contend quite reasonably that a longer

timeframe is desirable for a project of this size and note that

longer time horizons have been used to assess other airport

development projects. They fail to note, however, that the

O’Hare modernization plan will take many years to complete,

naturally pushing any useful timeframe far into the future. As

it will take eleven years to complete the O’Hare project, the

FAA’s projection extends sixteen years into the future. The

FAA determined that predictions any further along would be of

questionable reliability, which would defy the FAA’s NEPA

obligation to determine “reasonably foreseeable” impacts. 40

C.F.R. §§ 1508.25(c); 1508.8. The petitioners present no

grounds on which the court could question that judgment. The

timeframe used was in keeping with FAA precedent and

reasonable under the circumstances.

The petitioners also contend that the FAA should have used

the 2003 rather than the 2002 Terminal Area Forecast (“TAF”)

in its computer modeling. Using the more recent forecast,

according to the petitioners, would have demonstrated that the

ALP was ineffective in preventing delays from returning to

O’Hare. The 2002 forecast was the most recent available at the

time the FAA began its work. In the ROD, the FAA provided

three reasons for relying on the 2002 TAF: its belief in the

accuracy of the representation provided by the 2002 forecast, the

administrative necessity of cutting off new data at some point,

and its ability to take account of the 2003 and 2004 TAF

projections by other means. The record demonstrates that the

29

FAA conducted analyses to determine how significantly

variations in the 2003 and 2004 TAFs would affect its modeling

and that it determined the variations would not affect its

conclusions. However desirable it may be for agencies to use

the most current and comprehensive data available when making

decisions, the FAA has expressed its professional judgment that

the later data would not alter its conclusions in the EIS or the

approval of Alternative C, and it is reasonably concerned that an

unyielding avalanche of information might overwhelm an

agency’s ability to reach a final decision. Cf. W. Coal Traffic

League v. ICC, 735 F.2d 1408, 1411 (D.C. Cir. 1984). The

method that the FAA chose, creating its models with the best

information available when it began its analysis and then

checking the assumptions of those models as new information

became available, was a reasonable means of balancing those

competing considerations, particularly given the many months

required to conduct full modeling with new data.

Similarly, there is no merit to the petitioners’ claims that the

FAA improperly relied on other outdated information. The

petitioners contend that the FAA used outdated airport operating

procedures to construct its base case, rendering its comparison

of alternatives invalid. But as the FAA explains, these

operational procedures remain in place. The FAA’s

assumptions regarding airline behavior in response to the

restrictions are typical of the predictive judgments to which

courts defer and the petitioners fail to show that they were not

reasonable. See Public Utils. Comm’n of Cal. v. FERC, 24 F.3d

275, 281 (D.C. Cir. 1994). The petitioners also contend that the

FAA should have altered its baseline forecast to account for

delay improvements caused by the FAA’s 2004 scheduling order

limiting the number of flights at O’Hare. The FAA reasonably

explains that it did not use those numbers in the base case

because they did not appear until after the FAA began its

analysis and because it would be inappropriate to choose as the

30

baseline a set of conditions only achieved by imposing limits

that Congress has deemed to be detrimental to the public

interest. See 49 U.S.C. § 47101(a)(9). Again, these judgments

regarding the development of the baseline against which

alternatives would be assessed are the sorts of expert analytical

judgments to which courts typically defer. See Public Citizen,

Inc. v. FAA, 988 F.2d 186, 196-97 (D.C. Cir. 1993). The

petitioners have not provided any ground to doubt the

reasonableness of those judgments in this instance.

The petitioners further contend that the FAA established an

unprecedented acceptable delay level of fifteen minutes that

made Alternative C appear better than it is at reducing delays.

To begin, the petitioners fail to point out where the FAA

determines that fifteen minute delays are acceptable. Perhaps

the petitioners are referring to the fact that, in comparing the

“No Action” alternative to other alternatives, the “No Action”

alternative was constrained so as to produce between fifteen and

eighteen minutes of delay. The FAA explained that such

constraints were necessary to generate comparative operational

and environmental impacts. The petitioners present nothing to

call this judgment into doubt, and given the deference accorded

the FAA in forecasting air transportation demand and capacity,

see City of Olmstead Falls v. FAA, 292 F.3d 261, 272 (D.C. Cir.

2002), the court concludes that the FAA was neither arbitrary

nor capricious in establishing this baseline.

This litany of arbitrary and capricious challenges is

thoroughly rebutted by the FAA, which appears to have acted

with great care in conducting its analyses for the EIS and ROD.

Without more from the petitioners, the court has no basis to

conclude that the FAA’s methods were less than rational.

B.

Invoking the Fifth Amendment’s Due Process Clause, the

31

petitioners assert that the FAA denied it a right to a fair hearing

in several ways: by creating financial incentives that drive FAA

employees and officials to approve runway projects, by

employing individuals who formerly worked for the City or its

consultants, and by withholding thousands of documents that

would help them establish this procedural misconduct. Like the

FAA, the court has difficulty responding to these assertions

because they are vague and conclusory, and the petitioners’

failure to provide any greater detail in their reply brief suggests

the weakness of these claims. Clearly, “administrative decisions

made by adjudicators with a pecuniary interest in the results of

the proceeding may suffer reversal,” Jonal Corp. v. District of

Columbia, 533 F.2d 1192, 1197 (D.C. Cir. 1976) (citing Gibson

v. Berryhill, 411 U.S. 564, 579 (1973), and Tumey v. Ohio, 273

U.S. 510 (1927)), but what the petitioners describe appears to be

a fairly standard performance-based compensation system and

the FAA has advised that its bonuses are not directly linked to

individual performance or runway approvals. See Respondent’s

Br. at 61-62. As to the claim that some FAA employees

formerly worked for the City or its consultants, the petitioners

do not identify a single employee who might have such a

conflict of interest from prior employment, so the court cannot

determine whether their role in FAA decisionmaking was central

enough to question the integrity of the process. Both of these

claims of employee bias “fall[] far short of demonstrating that

the [FAA] had ‘a fixed opinion—a closed mind on the merits of

the case.’” Pharaon v. Bd. of Governors of Fed. Reserve Sys.,

135 F.3d 148, 155 (D.C. Cir. 1998) (quoting Throckmorton v.

NTSB, 963 F.2d 441, 445 (D.C. Cir. 1992)) (internal quotation

marks omitted). Regardless, “[c]laims of bias must ‘be raised as

soon as practicable after a party has reasonable cause to believe

that grounds for disqualification exist,’” id. (quoting Marcus v.

Dir., Office of Workers' Comp. Programs, 548 F.2d 1044, 1051

(D.C. Cir. 1976)), and it does not appear that petitioners raised

these claims before the agency, thus waiving them here. Finally,

32

as to the petitioners’ assertion that the FAA has withheld

thousands of documents, they point to nothing in the record to

justify this claim. In addition, the voluminous administrative

record, much of which includes specific responses to points

raised by the petitioners, their lawyers, and their consultants,

belies the claim that they have been denied “a reasonable

opportunity to know the claims of the opposing party and to

meet them.” Morgan v. United States, 304 U.S. 1, 18 (1938).

Accordingly, we deny the petitions for review.

GRIFFITH, Circuit Judge, concurring in part and

dissenting in part.

Although the Federal Aviation Administration (“FAA”)

has conceded that the plan it screened, studied, chose,

modified, and approved would substantially burden

petitioners’ religious exercise, the majority nevertheless

concludes that the FAA’s involvement in the relocation of St.

Johannes Cemetery is “peripheral” and “not sufficient to hold

the agency responsible for purposes of RFRA [the Religious

Freedom Restoration Act].” Maj. Op at 16-17. The majority

reaches this result after an extensive analysis of cases

addressing when a party may be treated as a state actor. The

majority presses these “state action” cases into service to

determine that a federal agency need not consider an

individual’s free exercise rights under RFRA even though it is

extensively involved in a state or local project. See Maj. Op.

at 12-13 (citing Sutton v. Providence St. Joseph Med. Ctr.,

192 F.3d 826, 834-35 (9th Cir. 1999) and Hall v. Am. Nat’l

Red Cross, 86 F.3d 919, 921 (9th Cir. 1996)).

RFRA, however, requires an altogether different analysis.

By its plain terms, RFRA mandates that we use the free

exercise jurisprudence decided before Employment Division v.

Smith, 494 U.S. 872 (1990), to determine whether the FAA’s

actions burden religious exercise. See 42 U.S.C.

§ 2000bb(a)(4)-(5), (b)(1).1 These cases establish that free

1

Section 2000bb of Title 42, U.S. Code, provides:

(a) Findings. The Congress finds that—

***

2

exercise rights may be violated where the federal government

directly—or indirectly—burdens religious exercise. Although

the majority’s approach may have some value where a

petitioner attempts to bring a non-federal entity within reach

of RFRA—as was the case in Sutton, where an employee

brought a RFRA claim against a private hospital, and Hall,

where an employee brought a RFRA claim against the Red

Cross—petitioners here have not brought suit against the City

of Chicago or any other non-federal entity. Petitioners do not

claim that the City of Chicago is “subject to suit under”

RFRA because its “alleged infringement of federal rights [is]

fairly attributable to the [FAA],” Sutton, 192 F.3d at 835, or

that the City of Chicago should be “considered [a]

government actor[] under the First Amendment” because it

has “a sufficient structural or functional nexus to the [FAA],”

(4) in Employment Division v. Smith, 494 U.S. 872

(1990) the Supreme Court virtually eliminated the

requirement that the government justify burdens on

religious exercise imposed by laws neutral toward

religion; and

(5) the compelling interest test as set forth in prior

Federal court rulings is a workable test for striking

sensible balances between religious liberty and

competing prior governmental interests.

(b) Purposes. The purposes of this chapter are—

(1) to restore the compelling interest test as set forth

in Sherbert v. Verner, 374 U.S. 398 (1963) and

Wisconsin v. Yoder, 406 U.S. 205 (1972) and to

guarantee its application in all cases where free

exercise of religion is substantially burdened . . . .

3

Hall, 86 F.3d at 921. Rather, petitioners challenge actual and

concrete action by the FAA. See Pet.’s Br. at 9 (“This case

involves challenges to two separate and distinct FAA

decisions.”).

RFRA’s substantial reach encompasses both the FAA,

see 42 U.S.C. § 2000bb-2(1) (RFRA applies to an “agency . . .

of the United States”), and its required involvement with the

Airport Layout Plan under the Airport and Airway

Improvement Act, see id. § 2000bb-3(a) (RFRA “applies to

all federal law, and the implementation of that law, whether

statutory or otherwise”). Execution of this plan requires the

relocation of St. Johannes Cemetery, which the FAA concedes

will substantially burden petitioners’ religious exercise.

Despite the FAA’s concession, the majority contends that the

FAA is not the “source” of that substantial burden. See Maj.

Op. at 9.

Where the party being challenged is the federal

government and the action at issue is the implementation of

federal law, RFRA itself tells us how to determine if the

federal government has burdened religious exercise: “the

compelling interest test as set forth in Sherbert v. Verner, 374

U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205

(1972).” 42 U.S.C. § 2000bb(b)(1). As the majority

acknowledges, we must turn to pre-Smith free exercise cases

to apply RFRA. See Maj. Op. at 11-12 (“RFRA was not

meant to ‘expand, contract or alter the ability of a claimant to

obtain relief in a manner consistent with the Supreme Court’s

free exercise jurisprudence under the compelling

governmental interest test prior to Smith.’”) (quoting S. Rep.

No. 103-111, at 12, as reprinted in 1993 U.S.C.C.A.N. at

1901). This is the very approach taken by our Court and other

courts. See, e.g., Henderson v. Kennedy, 253 F.3d 12, 17

(D.C. Cir. 2001) (“[t]o our court, ‘substantial burden’ in

4

RFRA is what the Supreme Court had in mind in its pre-Smith

opinion in [Jimmy Swaggart Ministries v. Bd. of Equalization,

493 U.S. 378 (1990)]”); Droz v. C.I.R., 48 F.3d 1120, 1122

n.2 (9th Cir. 1995) (“[b]ecause the RFRA restored the test

used to consider free exercise challenges before Smith, we

rely on pre-Smith decisions under the Free Exercise Clause”).

I am aware of no decision by the Supreme Court or this

Court that has declined to apply a free exercise analysis to a

government actor extensively involved in the restraint of

religious exercise. Indeed, in Sherbert, the landmark case that

created the compelling interest test RFRA requires us to

follow here, the Supreme Court held even indirect burdens by

government can implicate the Free Exercise Clause:

We turn first to the question whether the

disqualification for benefits imposes any burden on

the free exercise of appellant’s religion. We think it

is clear that it does. . . . For ‘if the purpose or effect

of a law is to impede the observance of one or all

religions or is to discriminate invidiously between

religions, that law is constitutionally invalid even

though the burden may be characterized as being

only indirect.’

Id. at 403-404 (quoting Braunfeld v. Brown, 366 U.S. 599,

607 (1961)) (emphasis added; footnote and alteration

omitted); see United Christian Scientists v. First Church of

Christ, Scientist, 829 F.2d 1152, 1166 n.67 (D.C. Cir. 1987)

(“Government is permitted, and at times required, to

accommodate religious practice when government itself,

directly or indirectly, places a burden on religious exercise.”)

(citations omitted and emphasis added). As the majority

concedes, Sherbert and the pre-Smith cases “tell us that . . .

the government was not free to burden religious exercise

5

through less direct restraints than criminal sanctions or fines.”

Maj. Op. at 13-14 n.3.

Indeed, both the Supreme Court and this Court held, prior

to Smith, that a federal agency’s approval can be the “source,”

see Maj. Op. at 9, of a burden on religious exercise. In Lyng

v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439

(1988), the Supreme Court applied the Free Exercise Clause

to the U.S. Forest Service’s authorization of third party

commercial logging and road projects in areas allegedly

sacred to a Native American tribe. Id. at 451. The Court did

not hesitate to find that the Forest Service’s approval of

commercial logging caused harm to plaintiffs’ religious

exercise, id. at 447, 451. The Court stated that “the

Government’s proposed action will have severe effect on the

practice of [plaintiffs’] religion,” id. at 447 (emphasis added).

The Court found, however, that this burden did not trigger

strict scrutiny because it neither coerced plaintiffs into

violating their religious beliefs nor penalized them for their

religious exercise, id. at 449.

In Wilson v. Block, 708 F.2d 735 (D.C. Cir. 1983), cert.

denied, 464 U.S. 1056 (1983), we scrutinized the Forest

Service’s decision to grant a permit to private interests

seeking to expand and develop a ski area. Plaintiffs filed suit

and alleged that the proposed development would burden their

religious exercise by impairing “their ability to gather sacred

objects and conduct ceremonies.” Id. at 740. We concluded

that the Forest Service, in granting a permit for private

development, was responsible for the alleged burden on

religious exercise. See id. at 742 (the “construction approved

by the Secretary is, indeed, inconsistent with the plaintiffs’

beliefs, and will cause the plaintiffs spiritual disquiet”). We

ultimately found, however, that “such consequences [did] not

state a free exercise claim,” id. at 742, because they were

6

insufficient to trigger strict scrutiny, id. at 745.

Because the federal agency action in both Lyng and

Wilson consisted of approval of third party action, the

inescapable conclusion is that both the Supreme Court and

this Court have found such action to be the “source” of a

burden on religious exercise. That is, approval by a federal

agency of third party action can be subject to a free exercise

challenge.

Thus I cannot accept the majority’s premise that the

FAA’s conduct here does not impose the type of burden on

petitioners’ religious exercise that RFRA was enacted to

address, especially considering that the FAA’s actions go

beyond the mere approval found sufficient in Lyng and

Wilson. The FAA initially “screened” fifteen alternative

development proposals, Resp.’s Br. at 8, eventually selecting

four alternatives “for more intensive study,” id. at 11. The

FAA, in its own words, then “conducted extensive public

outreach and coordination with other governmental and non-

governmental entities,” id., and an “intensive, nine-month

review” that involved over one-hundred modeling

experiments, id. at 13. From the four remaining alternatives,

one of which did not require the relocation of St. Johannes

Cemetery, the FAA, as stated in its brief, “chose Alternative C

as its preferred alternative”—an alternative that required the

relocation of not only St. Johannes but also Rest Haven,

another nearby cemetery, id. at 14-15 (emphasis added). The

FAA then “examined” thirteen additional alternative

proposals—eight submitted by petitioners and five created by

the FAA itself—that would “avoid or minimize the effects”

on the cemeteries, id. at 15-16. The FAA rejected all of these

alternatives and instead, as recited in its brief, “issued a

proposed resolution that would modify Alternative C so that

only St. Johannes but not Rest Haven would have to be

7

relocated,” id. at 17 (emphasis added). Accepting its own

modification, the FAA approved this new version of

Alternative C in a 492-page Record of Decision. Id. at 19.

Thus, by its own admission, the FAA screened, studied,

chose, modified, and eventually approved the plan to relocate

St. Johannes Cemetery. Contrary to the majority’s

suggestion, the FAA’s involvement here can hardly be said to

be “mere approval or acquiescence” in another actor’s

decisions, Maj. Op. at 20.

The FAA’s requirement that St. Johannes Cemetery be

relocated in order for the project to go forward causes a

burden on religious exercise just as surely as the denial of

benefits in Sherbert, 374 U.S. at 403-404, the approval of

commercial logging in Lyng, 485 U.S. at 447, 451, and the

approval of private development in Wilson, 708 F.2d at 742.

The FAA’s extensive involvement in the plan to relocate St.

Johannes Cemetery would not have escaped the reach of the

Free Exercise Clause before Smith and should not escape the

reach of RFRA now.

The majority claims that this approach is “unbounded”

and would mean that an “individual[] whose religious

exercise [is] burdened by private parties” would “grasp[] for a

federal decision somewhere in the vicinity [she] could deem

to be the ‘indirect’ cause of the burden” and that “every

federal licensee would become the state for purposes of

RFRA, as the government through its inaction granted

‘approval’ to their decisions.” Maj. Op. at 14 n.4. The

“unbounded approach” the majority decries is a straw man of

its own making, stuffed and dressed and tied together with

hypothetical scenarios that may justifiably raise alarms in

other settings, but not here, not on the facts of this case. Here,

the federal government was intensely involved in the plan to

relocate St. Johannes Cemetery. That involvement was not a

8

mere “federal decision somewhere in the vicinity” nor was it

“the government through its inaction grant[ing] ‘approval’.”

The FAA approved a plan that it had screened, studied, chose,

and modified—a plan that it concedes substantially burdens

petitioners’ religious exercise. Such actions, no less than the

actions by the Government in pre-Smith cases, entitle

petitioners to the protection of RFRA and require us to review

the FAA’s actions through the lens of strict scrutiny.

Under RFRA’s strict scrutiny test, the government must

demonstrate a “compelling governmental interest,” and use

the “least restrictive means” of furthering that interest. 42

U.S.C. § 2000bb-1(a), (b). Here, the FAA advances two

compelling interests: delay reduction and increased capacity.

The FAA claims that its “Preferred Alternative,” which

requires the relocation of St. Johannes Cemetery, would

produce the greatest delay reduction and increased capacity.

Petitioners proffered several alternatives that they claim

would achieve those same interests while saving St. Johannes

Cemetery. For example, they argued that shifting one runway

350 feet would preserve the cemetery and still achieve the

FAA’s objectives.

Under the demands of strict scrutiny, when “a plausible,

least restrictive alternative is offered . . . , it is the

Government’s obligation to prove that the alternative will be

ineffective to achieve its goals.” United States v. Playboy

Entm’t Group, 529 U.S. 803, 816 (2000). “A governmental

body that imposes a ‘substantial’ burden on a religious

practice must demonstrate, and not just assert, that the

[decision] at issue is the least restrictive means of achieving a

compelling governmental interest.” O’Bryan v. Bureau of

Prisons, 349 F.3d 399, 401 (7th Cir. 2003).

The FAA offered only conclusory responses to

9

petitioners’ proposed alternatives. The FAA, however, must

“show with . . . particularity how its admittedly strong

interest[s] . . . would be adversely affected by” the various

alternatives that would spare St. Johannes Cemetery from

relocation. See Yoder, 406 U.S. at 236 (emphasis added).

Without such a showing, we cannot determine if any of these

alternatives are a less restrictive means of satisfying the

FAA’s compelling interests. Thus, I would remand this case

to the FAA to make such a showing.

Today, the majority holds that a federal agency’s intense

involvement in a plan that substantially burdens religious

exercise does not create a burden recognizable under RFRA.

I find it difficult to reconcile this outcome with either the

plain language of RFRA or the free exercise jurisprudence

that guides its interpretation. In enacting RFRA, Congress

intended to reach “all cases where free exercise of religion is

substantially burdened” by the Federal Government, 42

U.S.C. § 2000bb(b)(1) (emphasis added), with the purpose of

“restor[ing] the compelling interest test” established in

Sherbert and Yoder, id. The majority’s holding today

improperly narrows the reach and frustrates the purpose of

RFRA. Accordingly, I respectfully dissent from Part II of the

Court’s opinion but otherwise concur.