Appendix — St. John's United Church of Christ v. Babbitt (No. 08-1447)

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APPENDIX A

United States Court of Appeals,

District of Columbia Circuit.

ST. JOHN'S UNITED CHURCH OF CHRIST, et

al., Petitioners

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FEDERAL AVIATION ADMINISTRATION and

Robert A. Sturgell, Administrator, Federal Aviation

Administration, Respondents

City of Chicago, Intervenor.

No. 07-1362.

Argued Oct. 23, 2008.

Decided Dec. 19, 2008.

Rehearing En Banc Denied Feb. 19, 2009.

Before: GRIFFITH and KAVANAUGH, Circuit

Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS.

WILLIAMS, Senior Circuit Judge:

This is the latest installment in an ongoing

battle between the City of Chicago and the Federal

Aviation Administration on the one hand, and

various. religious and_ secular communities

bordering O'Hare International Airport on the

other. In this case, petitioners challenge the FAA's

September 4, 2007 Final Agency Decision, which

authorizes Chicago to impose Passenger Facility

Charges (“PFCs”) on passengers using O'Hare, the

revenue to be used for airport improvement

projects. The religious petitioners claim the FAA

violated the Religious Freedom Restoration Act

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(“RFRA”), 42 U.S.C. § 2000bb-1, arguing that one of

the projects‘runway construction necessitating a

cemetery relocation-would “substantially burden”

petitioners' exercise of religion, but would not

further “a compelling governmental interest.” In

addition, all petitioners challenge the FAA's

decision as failing to comply with statutory and

regulatory requirements for approval of PFCs.

We do not reach the merits of the RFRA claim;

the religious petitioners failed to establish Article

III standing to raise it. Specifically, petitioners did

not show a substantial probability that in the

absence of PFCs Chicago would leave the cemetery

alone. In other words, we cannot conclude that

petitioners' success on the merits would likely lead

to redress of their alleged injury.

On the merits of the secular claims, we find that

the FAA's authorization of PFCs was neither

arbitrary nor capricious. Contrary to petitioners'

claim, the FAA's finding of “adequate justification,”

49 U.S.C. § 40117(d)(3), for each of the disputed

projects was not unreasonable. We _ therefore

dismiss the RFRA claim and reject the remaining

claims.

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Construction of one of the runways for which

Chicago received PFC authorization requires

relocation of the St. Johannes religious cemetery.

According to the religious petitioners, the relocation

offends a “fundamental precept” of their religious

behefs, namely, “that the remains of their co-

religionists in the sacred consecrated ground of St.

Johannes must remain undisturbed until Jesus

Christ raises up the departed on the Day of

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Resurrection.” St. John's Br. 21. Neither the FAA

nor Chicago questions the bona fides of this belief.

The three prerequisites of standing-injury,

causation, and redressability-are quite familiar.

See, e.g., St. John’s United Church of Christ v.

FAA, 520 F.3d 460, 462 (D.C.Cir.2008). The

religious petitioners’ theory for satisfying them

rests on the claimed essentiality of the PFCs to

fund the runway project and concomitant

destruction of the St. Johannes cemetery. Chicago,

they say, has no other source of funding. The

airlines operating at O'Hare are refusing to

approve further General Airport Revenue Bonds

(“GARBs’”), which allow recourse only against such

revenue; and the city has promised that O'Hare's

modernization will be “at no cost to local or state

taxpayers.” St. Johns Br. at 3 & n. 4; 2 Addendum

363, 4 31. Accordingly, the PFC authorization will

cause petitioners’ RFRA injury, and vacating the

authorization would thwart Chicago's plans and

thus redress the injury.

Even assuming arguendo that the religious

petitioners could be found to have shown injury and

causation, redressability is exceptionally

speculative. First, Chicago's political promise to

protect Chicago taxpayers from the cost of the

O'Hare improvements is just that-a political

promise with no legal force whatsoever.

Second, Chicago convincingly disputes

petitioners’ assertion that it lacks alternative

sources of funds to replace the PFCs. In its brief

and during oral argument, Chicago pointed out it

“does not need ... airline approval to issue bonds on

which principal and interest are payable from

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airport revenue collected after the current airline

agreements terminate in 2018,” i.e., bonds not

secured by the existing agreements and the

associated revenues. Chicago Br. 41. In fact, it has

already issued hundreds of millions of doilars

worth of such bonds. See id; Oral Arg. Tr. 35.

Presumably it can do so again.

Petitioners do not dispute the point. They argue

instead that bonds not secured by airline

agreements would put Chicago taxpayers at risk,

arguably contrary to Chicago's promise. St. John's

Br., 2 Addendum 363, § 31. But putting taxpayers

at risk (assuming the hypothetical bonds would do

so) is not the same as an unconditional city

obligation. Airport revenue may well prove

adequate, so that no taxpayer payment will be

required. Certainly politicians frequently describe

schemes that impose such risks on taxpayers as

“free” or “at no cost to the taxpayer.”

Finally, if we were to vacate the PFC

authorization, Chicago could go back to the airlines

and attempt to renegotiate. As we have already

said during one of this case's many predecessors in

our court, the necessity of renegotiations with the

airlines would “not create ‘a significant increase in

the likelihood’ that the project would be scuttled

altogether rather than merely delayed.” Village of

Bensenville v. FAA, 457 F.3d 52, 70 (D.C.Cir.2006)

(quoting Utah v. Evans, 536 U.S. 452, 464, 122

S.Ct. 2191, 153 L.Ed.2d 453 (2002)). Accordingly,

the religious petitioners have not shown the

requisite “substantial probability” that any order of

ours could redress their injury. St. John’s, 520 F.3d

at 462.

All petitioners challenge the PFC authorization

as failing to comply with relevant statutory and

regulatory requirements. Before getting to the

merits, we briefly note that petitioners have

standing to challenge the authorization. “Having to

pay the passenger facility fee every time an officer

or employee enplanes at O'Hare is a legally

cognizable injury, directly traceable to the FAA's

order authorizing it and redressable by a favorable

ruling from us.” Village of Bensenville v. FAA, 376

F.3d 1114, 1119 (D.C.Cir.2004). As we have just

explained how Chicago's alternative sources of

revenue defeat redressability of the RFRA claim,

one might wonder why they do not have the same

effect here. After all, even in the absence of PFCs,

passengers in the aggregate will likely pay this

same amount through other airport charges-e.g.,

ones collected via the various concessions. at

O'Hare. See Oral Arg. Tr. 38. But courts have never

required a plaintiff, forced by an agency ruling to

pay a specific charge, to show that he or she will in

the end escape an equivalent burden (or offsetting

reduction in service). To do so would likely end up

with the parties searching for-and almost certainly

finding-a fee-payer who could show that the

alternative would not burden him, or would not

burden him as much; this would be true, for

example, of an airport patron who used concessions

little or not at all. Given the overwhelming

probability of there being some such differently

positioned fee-payer, the search would uselessly

consume htigation resources.

PFCs are non-federal funds that an airport

operator can receive for eligible airport-related

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projects. They are collected by airlines through

ticket charges from their customers. See 14 C.F.R. §

158.3; FAA Br. 5-7. Chicago applied for PFC

authorization for four projects related to various

improvements at the O'Hare airport. Three projects

directly involved runways‘the construction of two

new ones (including the runway that requires

relocation of the St. Johannes cemetery) and an

extension of an existing one. In the fourth project,

Chicago sought reimbursement for the cost of

already-acquired parcels of land surrounding

O'Hare. This land was needed for runway

construction, overflight protection, Oral Arg. Tr. 31,

and other projects related to the building of

runways, all intended to improve airport operations

and decrease passenger delays. FAA Br. 10°12.

Before the FAA can authorize an _ airport

operator to receive PFC funds, it must find, among

other things, that “the application includes

adequate justification for each of the _ specific

projects.” 49 U.S.C. § 40117(d)(3); see also 14 C.F.R.

§ 158.15(c) (“An eligible project must be adequately

justified to qualify for PFC funding.”). FAA Order

5500.1 further spells out the “adequate

justification” requirement. In relevant part, the

order requires the FAA to “conclude that the sum of

aeronautical benefits would not be

disproportionately less than project costs.” FAA

Order 5500.1, {| 4°8, 1 Joint Appendix (“J.A.”) 205.

In making this determination, “there is no

requirement for benefit-cost analysis (BCA).” Jd.

But “in the event that a BCA is available on a

project, its inclusion in the project application

materials should be encouraged.” /d.

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In the FAA's September 4, 2007 decision, it

authorized Chicago to collect approximately $1.2

billion of PFCs for the four projects. 14 J.A. 9536.

Relying on Chicago's’ application materials

(including a BCA), the FAA found that each project

was supported by adequate justification.

Petitioners claim, however, that the FAA's decision

did not satisfy the requirements set out in Order

5500.1 because the FAA failed to find, in a non-

arbitrary fashion, that the benefits of each project

were not disproportionately less than project costs.

We review the FAA's compliance with statutory

and regulatory requirements under the highly

deferential arbitrary and capricious standard. See

Bensenville, 376 F.3d at 1120. Moreover, when the

FAA's determination involves, as here, forecasts of

capacity and demand at an airport, even more

deference is due. City of Olmsted Falls, Ohio v.

FAA, 292 F.3d 261, 270 (D.C.Cir.2002).

In approving Chicago's PFC petition, the FAA

relied on the available BCA data. The data were

not disaggregated for each project, but were

grouped in blocks corresponding to stages in the

overall O'Hare improvement program.

Using these data, the FAA reached judgments

about the justifiability of the four projects

contained in Chicago's application. The three

runway projects closely correspond to what is

labeled “Phase 1 Airfield” (the only difference is

that Phase 1 Airfield includes several taxiways and

miscellaneous runway-related projects in addition

to the three runways, FAA Br. 10 n. 3). In

authorizing PFC funds for each of the three runway

projects, the FAA noted the benefit-cost ratio of 6.2

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for Phase 1 Airfield. 14 J.A. 9458, 9473, 9496.

Benefits quantified to produce the ratio were

savings in “aircraft, passenger, and cargo delay”

and “lilmproved efficiency of traffic flows.” 10 J.A.

6763. It appears that in finding “adequate

justification,” 14 J.A. 9554, 9559, 9565, the FAA

concluded that the three runways would contribute

most of the benefits quantified in the 6.2 ratio. The

runway projects were thus not disproportionately

costly; together with several taxiways, they

produced $6.2 of benefits for every dollar of costs.

Petitioners have offered no direct evidence or

reason to think the FAA acted arbitrarily or

capriciously in reaching this conclusion. And

there's no merit to petitioners’ argument that the

FAA must show an alternate financial plan in the

event that PFC revenues are not made available.

There's simply no such requirement. To be sure,

Order 5500.1 does require a viable alternative

funding source plan, but that is only for Airport

Improvement Program (“AIP”) discretionary

projections, not for PFCs. FAA Order 5500.1, 4 4-

19(6), 1 J.A. 218-19 (“The financial plan for each

project should include ... [vliable alternate funding

source plan for AIP discretionary projections.”).

Petitioners have not shown that in approving

Chicago's PFC application for the three runway

projects the FAA failed to comply with any of the

applicable statutory and regulatory requirements.

The FAA analyzed the land acquisition project

somewhat differently. Because the land would be

used for runway construction in more than one

phase of the overall O'Hare improvement plan,

FAA Br. 10 n. 3, the FAA appears to have relied on

the benefit-cost ratio for that overall program

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(labeled “Total Master Plan”), for which the

calculated benefit-cost ratio was 2.02, 14 J.A. 9519.

Arguing against the supposed justifiability of

the overall project, petitioners raise what at first

glance seems to be a valid argument. They focus on

the segments into which the expert consultants

organized the BCA data.. The following chart,

slightly modified from petitioners’ presentation,

which in turn is derived from data presented by the

FAA, breaks the BCA into segments for Phase 1

Airfield, Total Master Plan, and the increment

from one to the other:

Present Value Present Value

of Benefits of Costs

Project (billions) (billions)

Phase 1 Airfield $12.4 $1.9

Total Master Plan $12.6 $6.2

Incremental $ 0.2 $4.3

Difference, Total

Master Plan over

Phase 1 Airfield

Obviously the increment from Phase 1 Airfield

to Total Master Plan-which we'll call the TMP

increment-has a dismal BCA: benefits of $0.2

billion and costs of $4.3 billion. See St. John's Br., 2

Addendum 374. To be sure, this incremental

analysis overlooks the benefits not quantified in the

BCA data. See 10 J.A. 6763 (listing various other

benefits-e.g., ability to accommodate larger aircraft,

improved passenger comfort, safety improvements,

and shortened pedestrian traffic in getting to a

desired gate). But the FAA did not rely on these

other benefits, and under standard principles we

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cannot do so either. SEC v. Chenery Corp., 332 U.S.

194, 196-97, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947).

Thus, if the land acquisition were justified only by

the counted benefits in the TMP increment, it

would seem-short of further segmentation-to be

disproportionately costly. To overcome the

objection, the FAA must show that a significant

portion of the acquisition was necessitated by the

first phase of the overall project, Phase 1 Airfield.

Although the FAA did not make our job easy, it

appears the agency has done enough-though barely

so, and only under the highly deferential] arbitrary

and capricious standard-to shift the focus away

from the TMP increment. On the one hand, the

FAA determined that “[mJost of the [land] is needed

for Phase 1 runways,” with only “a small portion,”

six of the 331 parcels, being justified exclusively by

runway projects in the TMP increment. 14 J.A.

9519; see also FAA Br. 38. They are the six parcels

south of the railroad in the extreme lower left of the

following aerial photo:

= “eM Ds

. oe ws; cate NE

FAA Br., Addendum Exhibit 1 (excerpt). On the

other hand, according to the exhibit, the bulk of the

remaining 325 parcels lie directly to the left (west)

of runway 10R/28L, which is part of the TMP

increment, and well below (south of) the

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southernmost Phase 1 Airfield runway (10C/28C).

See id.,8 J.A. 5423; 10 J.A. 6755.

As best we can _ resolve the apparent

contradiction in the FAA's presentation, most of the

land, in fact, serves multiple purposes. In project

justification documents filed with the FAA, Chicago

described the intended land use as follows: “(1)

development of new airfield and landside facilities,

and (2) construction-related areas for construction,

spoil storage, parking construction equipment, and

providing for construction haul roads.” 14 J.A.

9512. This will enable construction of the overall

project “in a way that maintains O'Hare in an open

and fully functioning mode throughout the entire

construction process.” /d, Thus, when the overall

project is finished, most of the land may indeed

serve a runway constructed in the TMP increment.

But during construction, the land will be used for

projects related to Phase 1 Airfield. Because the

cost of these parcels appears to be reasonably

connected to the construction of Phase 1 Airfield

runways, and thus tc the benefits they are expected

to provide, the FAA reasonably justified the whole

land acquisition project by the favorable benefit-

cost ratios for the overall program or Phase 1

Airfield-2.02 and 6.2, respectively (perhaps

deeming the remaining six parcels de minimis in

the grand scheme of 331 parcels). Accordingly, we

are not persuaded that the FAA's authorization of

PFC funds was either arbitrary or capricious.

Before signing off, we should say a word or two

about the Joint Appendix. The parties sent us 15

volumes, totaling 9710 pages. Most pages appear to

contain needless repetition-e.g., identical exhibits

attached to different applications filed with the

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FAA in the course of the casc's long history at the

agency level. Worse, the parties' briefs cite items

without telling us in what volume we might find

them. 'Nuff said.

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We dismiss the religious petitioners’ RFRA

claim for lack of standing and, finding the FAA's

decision to be neither arbitrary nor capricious, deny

the remainder of the petition.

So ordered.

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APPENDIX B

United States Court of Appeals

For The District of Columbia Circuit

ST. JOHN'S UNITED CHURCH OF CHRIST, et

al., Petitioners

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FEDERAL AVIATION ADMINISTRATION and

Lynne A. Osmus, Acting Administrator, Federal

Aviation Administration, Respondents

City of Chicago, Intervenor

No. 07-1362

Filed on February 19, 2009

Before: Griffith and Kavanaugh, Circuit Judges,

and Williams, Senior Circuit Judge

ORDER

Upon consideration of petitioners' petition for

panel rehearing filed on February 2, 2009, it is

ORDERED that the petition be denied.

Per Curiam

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United States Court of Appeals

For The District of Columbia Circuit

ST. JOHN'S UNITED CHURCH OF CHRIST, et

al., Petitioners

v.

FEDERAL AVIATION ADMINISTRATION and

Lynne A. Osmus, Acting Administrator, Federal

Aviation Administration, Respondents

City of Chicago, Intervenor

No. 07-1362

Filed on February 19, 2009

Before: Sentelle, Chief Judge, and Ginsburg,

Henderson, Rogers, Tatel, Garland,

Brown, Griffith, and Kavanaugh, Circuit

Judges, and Williams, Senior Circuit

Judge

ORDER

Upon consideration of petitioners’ petition for

rehearing en banc, and the absence of a request by

any member of the court for a vote, it is

ORDERED that the petition be denied.

Per Curiam

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APPENDIX C

United States Court of Appeals,

District of Columbia Circuit.

VILLAGE OF BENSENVILLE, et al., Petitioners

v.

FEDERAL AVIATION ADMINISTRATION,

Respondent

City of Chicago, Intervenor for Respondent.

No. 05-1383.

Argued May 5, 2006.

Decided Aug. 4, 2006.

Rehearing En Banc Denied Dec. 15, 2006.

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. § 2000bbet 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

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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 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

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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. §§ 47101let seg. (‘AAIA”), authorizes federal

funding for airport improvement projects and

establishes the prerequisites for a 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.” Jd. § 47101(b)(2)49USCAS47101. 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.” Jd. § 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.” /d.

§ 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);

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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.§& 47107.

Among these standards, the airport owner must

“maintain a current layout plan of the airport” that

is approved by the FAA. Jd.§ 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

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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.” I[d§

47110(e)(1). Any such statement of intention,

however, 1s 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.

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

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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

htigation 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 by repositioning certain cargo

facilities.

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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.

If.

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, 110 S.Ct. 1595,

108 L.Ed.2d 876 (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, 110 S.Ct. 1595. In so doing, the

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Court declined to apply the compelling interest

balancing test set forth in Sherbert v. Verner, 374

U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963),

which required that governments demonstrate that

laws substantially burdening religious exercise are

supported by a compelling interest. See Smith, 494

U.S. at 882-85, 110 S.Ct. 1595. 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,

117 S.Ct. 2157, 138 L.Ed.2d 624 (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, 117

S.Ct. 2157. RFRA's compelling interest test

remained in effect as to the federal government. !

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 seg.), 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, 125 S.Ct.

23a

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 [al 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.” /a§

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.

2113, 161 L.Ed.2d 1020 (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, 125 S.Ct. 2113. 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 ¥.Supp.2d 887 (N.D.1.2005); St. John's United

Church of Christ v. City of Chicago, No. 05-4418, 2005 WL

3749817 (7th Cir. filed Dec. 30, 2005).

24a

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

United States,” zd.§ 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 cemetery does not implicate

RFRA because the City, not the FAA, is responsible

for the imposition of the claimed burden on

religious exercise. Although “lilntervenors 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 be‘ore 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’ 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

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, 108 S.Ct. 1319, 99 L.Ed.2d 534 (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.

25a

the Fed. Reserve Sys., 952 F.2d 426, 433

(D.C.Cir.i991)). 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 rd. 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 actionI |” for purposes

of NEPA. 42 U.S.C. § 4332(C); see40 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,”

“includling] the circumstance where the responsible

officials fail to act.” Jd. § 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.

26a

v. Minnesota, 322 U.S. 292, 303, 64 S.Ct. 950, 88

L.Ed. 1283 (1944). The Illinois legislature noted as

much when endorsing the O'Hare expansion plan

in “recognizling] 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, 103 S.Ct. 1556, 75 L.Ed.2d 534 (1983). Under

that analysis, it becomes clear that NEPA's broad

applhcation 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, see42

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

532, 117 S.Ct. 2157, 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 Committee reported that “the

27a

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 1n 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 Szuth.” 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, 102

S.Ct. 2764, 73 L.Ed.2d 418 (1982). Modified to

28a

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.” B/um v. Yaretsky, 457

U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534

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

U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (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-Smuth cases

barring “indirect” burdens on free exercise, see Dissenting Op.

at 75, 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

compellled]” her to violate her religious beliefs. 374 U.S. at

29a

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. Edmondson O1l Co., 457 U.S. 922, 939, 102

S.Ct. 2744, 73 L.Ed.2d 482 (1982), as if the federal

government were regulating the decision of a

private entity, with the City standing in the place

403, 83 S.Ct. 1790. “[T]he fact that no direct restraint or

punishment [was] imposed,” id. at 404 n. 5, 83 S.Ct. 1790, was

immaterial because “the pressure upon her to forego [her

religious] practice [was] unmistakable,” id. at 404, 83 S.Ct.

1790. 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, 101 S.Ct. 1425,

67 L.Ed.2d 624 (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.” /d. at 717-18, 101 S.Ct.

1425; accord Hobbie v. Unemployment Appeals Comm'n of

Fla., 480 U.S. 136, 141, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987).

These cases tell us that before Suth the 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, 1n 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-Smuth 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.

30a

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

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

108 S.Ct. 1109, 99 L.Ed.2d 270 (1988).

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

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 73-74, 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, 92

S.Ct. 1965, 32 L.Ed.2d 627 (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, 81

S.Ct. 856, 6 L.Ed.2d 45 (1961); Public Utils. Comm'n v.

Pollak, 343 U.S. 451, 461-63, 72 S.Ct. 813, 96 L.Ed. 1068

(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 74, and that

“approval” of a third party's actions constitutes an indirect

burden, see id. at 75°76. In a system of pervasive licensing

and regulation by the federal government, our colleague's

unbounded approach would mean that as individuals whose

religious exercise was burdened by private parties grasped for

a federal decision somewhere in the vicinity they could deer

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 ulusory if those potential

plaintiffs are as willing as the dissent to label government

involvement as “extensive[ ],” zd. at 73, or “intense[ ],” sd. at

76°77, even when the private party invents, designs,

advocates, and implements the action that imposes the

burden on free exercise.

gla

State.” Jackson, 419 U.S. at 350, 95 S.Ct. 449.

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, 102 S.Ct. 2777.

“Mere approval of or acquiescence in the initiatives

of a private party is not sufficient to justify holding

the State responsible for those initiatives ....”"/d. at

1004-05, 102 S.Ct. 2777; see also Am. Mfrs. Mutual

Ins. Co. v. Sullivan, 526 U.S. 40, 52, 119 S.Ct. 977,

143 L.Ed.2d 130 (1999); Moose Lodge v. Irvis, 407

U.S. 163, 177, 92 S.Ct. 1965, 32 L.Ed.2d 627 (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, 102 S.Ct.

2764 (citing Blum, 457 U.S. at 1011, 102 S.Ct.

2777).

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, 119 S.Ct. 977 (quoting

Blum, 457 U.S. at 1004, 102 S.Ct. 2777). The

specific conduct that the petitioners challenge is

the seizure and relocation of St. Johannes

Cemetery. Consequently, the court must decide

whether the FAA's role in the potential

disinterment at St. Johannes is “[mlere 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

32a

that of the [FAA].”Blum, 457 U.S. at 1004, 102

S.Ct. 2777. Fairly characterizing the level of federal

governmental involvement can be accomplished

“folnly by sifting facts and weighing

circumstances.” Moose Lodge, 407 U.S. at 172, 92

S.Ct. 1965. “[A]lbsent 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

33a

“not make or allow any alteration in the airport or

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 anagency responsible for a

particular effect.” Dep't of Transp. v. Pub. Citizen,

541 U.S. 752, 767, 124 S.Ct. 2204, 159 L.Ed.2d 60

(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.

34a

at 76-77. 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 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,” B/um, 457 U.S. at 1004, 102 S.Ct.

2777, that provoke’. 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

respunsible 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 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 AAJA, 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

35a

To the contrary, the FAA's role as regulator is

similar to that in many cases where the Supreme

Court has declined to find state action. See, e.g,

Rendell-Baker, 457 U.S. at 841-42, 102 S.Ct. 2764.

For instance, in Moose Lodge, 407 U.S. 163, 92

S.Ct. 1965, 32 L.Ed.2d 627, 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, 92 S.Ct. 1965. 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, 95

S.Ct. 449. The Supreme Court observed that

“sovernmental 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

the question “whether government has placed a substantial

burden on the observations of a central religious belief or

practice,” Hernandez v. CIR, 490 U.S. 680, 699, 109 S.Ct.

2136, 104 L.Ed.2d 766 (1989), or whether some other actor

should bear the blame for that burden. Rather than “tryling]

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, 121 S.Ct. 924, 148 L.Ed.2d 807 (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, 121 S.Ct. 924, providing this court with guidance with

which to address this question.

36a

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.’ ” /d.

at 357, 95 S.Ct. 449. “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. /d.

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.’” /d. (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, it

was the “conduct of [the City] exercising

independent judgment that yielded the contested

result.” 7d. Where the FAA “cannot be said to in

any way foster or encourage,’ Moose Lodge, 407

U.S. at 176-77, 92 S.Ct. 1965, the burden on

religious exercise, “the simpie device of

characterizing the [FAA]'s inaction as

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

Inc. v. Brooks, 436 U.S. 149, 164-65, 98 S.Ct. 1729,

56 L.Ed.2d 185 (1979), is insufficient to justify

37a

imposition of RFRA's compelling interest test. See

also Am. Mfrs. Mut. Ins. Co., 526 U.S. at 53-54, 119

S.Ct. 977. 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, 102 S.Ct. 2777.

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 [clourt held, prior to Smyth, that a

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

burden on religious exercise.” Dissenting Op. at 75.

In the cases cited by the dissent-Lyng v. Northwest

Indian Cemetery Protective Ass'n, 485 U.S. 439,

108 S.Ct. 1319, 99 L.Ed.2d 534 (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, 108

S.Ct. 1319; 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, 108 S.Ct. 1319. The

Supreme Court merely noted “that the

Government's proposed actions will have severe

adverse effects on the practice of their religion.” Jd.

at 447, 108 S.Ct. 1319. The Court never addressed

the question that the dissent claims that it did:

38a

whether “approval by a federal agency of third

party action can be subject to a free exercise

challenge.” Dissenting Op. at 76. 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, 108 S.Ct. 1319,

and “the Forest Service adopted a management

plan allowing for the harvesting of significant

amounts of timber,” zd. at 443, 108 S.Ct. 1319. No

third party was involved.

Similarly, Wz/son 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.” Jd. 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, 98

S.Ct. 1729. We decline our dissenting colleague's

invitation to do so today.

39a

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,

117 S.Ct. 2157. In this case, state and local

governments would again be hampered by RFRA's

“intrusion into the States’ traditional prerogatives

and general authority to regulate for the health

and welfare of their citizens.” /d. In City of Boerne,

the Supreme Court rejected RFRA's “intrusion at

every level of government,” id. at 532, 117 S.Ct.

2157, 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, 117 S.Ct. 2157. 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, 120 S.Ct. 1858, 146 L.Ed.2d 836

(2000); Gregory v. Ashcroft, 501 U.S. 452, 460-61,

111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). Because

the relocation of St. Johannes Cemetery cannot be

40a

fairly attributed to the actions of the FAA, the

petitioners' RFRA claim fails.

ITT.

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 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; Azr Cal.

4la

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, 118, 68 S.Ct. 431, 92

L.Ed. 568 (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, 91 S.Ct. 203, 27 L.Ed.2d 208 (1970).

Bennett v. Spear, 520 U.S. 154, 177-178, 117

S.Ct. 1154, 137 L.Ed.2d 281 (1997). Therefore, the

outcome of this inquiry depends upon the place of

the LOI in the FAA's decisionmaking process and

upon its precise legal effect.

A LOT is an odd creature of statute that, unlike

other more definitive agency decisions, merely

“statles] 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.” /d. §

47110 (e)(3). Instead, a LOI is a planning document

that “establishles] a schedule under which the

[FAA] will reimburse the sponsor for the

Government's share of allowable project costs, as

aia eae

42a

amounts become available.” /d. § 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 oniy 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, 59 S.Ct.

754, 83 L.Ed. 1147 (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 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.” Jd. § 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

43a

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?

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, 117

S.Ct. 1154. 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.” U/tah v. Evans, 536 U.S. 452, 464,

122 S.Ct. 2191, 153 L.Ed.2d 453 (2002). Or in

concrete terms, would the City develop O'Hare as

44a

planned without the $337 million in federal

funding set forth in 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 “[ilf

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.

See49 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, 122 S.Ct. 2191, that the project would be

scuttled altogether rather than merely delayed.

The relatively minor role of the LOI dollars in

funding Phase | of the O'Hare expansion, the fact

that the City could return to the FAA for a grant in

a new application, and the 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.8d 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

46a

failed to consider relevant factors, see Citizens to

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

416, 91 S.Ct. 814, 28 L.Ed.2d 136 (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, 103 S.Ct. 2856, 77 L.Ed.2d 443

(1983) (quoting Burlington Truck Lines v. United

States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d

207 (1962)).

The petitioners contend that the FAA erred in

using an unreasonably short period of evaluation to

gauge delay savings 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

selectls}” 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,

47a

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

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

48a

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.8d 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 baseline a set of conditions only

achieved by imposing limits that Congress has

deemed to be detrimental to the public interest.

See49 U.S.C. § 47101(a)(9). Again, these judgments

regarding the development of the baseline against

which alternatives would be assessed are the sorts

49a

of expert analytical judgments to which courts

typically defer. See Public Citizen, Inc. v. FAA, 988

F.2d 186, 196-97 (D.C.Cir.i9$3}. 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 “Ne 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

Olmsted 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.

50a

B.

Invoking the Fifth Amendment's Due Process

Clause, the 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, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973),

and Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71

L.Ed. 749 (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

bla

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, “[cllaims 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, 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, 58 S.Ct. 773, 82

L.Ed. 1129 (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

52a

the agency responsible for purposes of RFRA [the

Religious Freedom Restoration Act].” Maj. Op at

64-65. 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 62-63 (citing Sutton v.

Providence St. Joseph Med. Ctr., 192 F.3d 826, 834-

35 (Sth Cir.1999) and Hal/ v. Am. Nat? 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, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), to

determine whether the FAA's actions burden

religious exercise. See42 U.S.C. § 2000bb(a)(4)-(5),

(b)(1).! These cases establish that free exercise

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

(a) Findings. The Congress finds that-

week ek

(4) in Employment Division v. Smith, 494 U.S. 872, 110

S.Ct. 1595, 108 L.Ed.2d 876 (1990) the Supreme Court

virtually eliminated the requirement that the government

justify burdens on religious exercise imposed by laws neutral

toward rehgion; and

(6) 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

govemmental interests.

53a

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 Hal/,

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

lis] 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],’Ha// 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,

(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, 83 S.Ct. 1790, 10 L.Ed.2d

965 (1963) and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct.

1526, 32 L.Ed.2d 15 (1972) and to guarantee its application in

all cases where free exercise of religion is substantially

burdened .

54a

see 1d.§ 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

concess on, the majority contends that the FAA is

not the ‘source” of that substantial burden. See

Maj. Op. at 61.

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, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) and

Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32

L.Ed.2d 15 (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

61-62 (“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 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, 110

S.Ct. 688, 107 L.Ed.2d 796 (1990) ]”); Droz v. CLR.,

48 F.3d 1120, 1122 n. 2 (9th Cir.1995) (“[blecause

55a

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, 83 S.Ct. 1790

(quoting Braunfeld v. Brown, 366 U.S. 599, 607, 81

S.Ct. 1144, 6 L.Ed.2d 563 (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-SmitA cases “tell us that ...

the government was not free to burden religious

exercise through less direct restraints than

criminal sanctions or fines.” Maj. Op. at 63 n.3.

56a

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 61, of

a burden on religious exercise. In Lyng v.

Northwest Indian Cemetery Protective Ass'n, 485

U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (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, 108 S.Ct. 1319. 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, 108 S.Ct. 1319.

The Court stated that “the Government's proposed

action will have severe effect on the practice of

[plaintiffs'] religion,” sd. at 447, 108 S.Ct. 1319

(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, 1d. at 449, 108 S.Ct. 1319.

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

cert. denied,464 U.S. 1056, 104 S.Ct. 739, 79

L.Ed.2d 197 (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.” /d. 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,

57a

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,” sd. at 742,

because they were insufficient to trigger strict

scrutiny, 1d. 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,” zd. at 11.

The FAA, in its own words, then “conducted

extensive public outreach and coordination with

other governmental and _ non-governmental

entities,” zd., and an “intensive, nine-month review”

that involved over one-hundred modeling

experiments, zd. 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

58a

(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

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. /d. 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 66.

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, 83 S.Ct. 1790, the approval of

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

108 S.Ct. 1319, and the approval of private

development in Wi/son, 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

59a

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 63-64 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

mere “federal decision somewhere in the vicinity”

nor was it “the government through its inaction

grantling) ‘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

60a

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, 120 S.Ct. 1878, 146 L.Ed.2d 865 (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.2008).

The FAA offered only conclusory responses to

petitioners' proposed alternatives. The FAA,

however, must “show with ...particu/arity how its

admittedly strong interestls] ... would be adversely

affected by” the various alternatives that would

spare St. Johannes Cemetery from relocation. See

Yoder, 406 U.S. at 236, 92 S.Ct. 1526 (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

6la

plain language of RFRA or the free exercise

jurisprudence that guides its interpretation. In

enacting RFRA, Congress intended to reach “a//

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

“restorling) the compelling interest test”

established in ShAerbert 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.

62a

APPENDIX D

United States Court of Appeals,

District of Columbia Circuit.

ST. JOHN'S UNITED CHURCH OF CHRIST, et al.,

Petitioners

, -

FEDERAL AVIATION ADMINISTRATION and

Marion C. Blakely, Administrator, Respondents

City of Chicago, Intervenor for Respondent.

No. 06-1386.

Argued Feb. 11, 2008.

Decided March 21, 2008.

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

63a

complains Chicago's acquisition will destroy its

parkland and affordable housing while petitioner Elk

Grove complains the acquisition wil 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

rey cirements 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.” Jd.

We dismissed petitioners' challenges to these

findings, holding the LOI unreviewable because it

was not an “order” under 49 U.S.C. § 46110(a).! 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.8d 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. /d. 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

1 We also rejected the petitioners' challenges to certain

determinations in the ROD, and their claim that FAA's approval

of the ALP violated the Religious Freedom and Restoration Act

(RFRA), 42 U.S.C. § 2000bb et seg. Vill. of Bensenville, 457 F.3d

at 65, 70-72.

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.

Il

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.” /d. 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.

66a

Nor is the $1.3 billion in PFC's before the court.?

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. Azr

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’ dces 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

parklands, 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 “l[flailure to

comply with grant conditions” can result only “in

2 And needless to say, FAA funding the petitioners speculate

Chicago will seek 1s not now at issue

67a

suspension or termination of the grant.” Airport

Improvement Program Handbook, FAA Order

5100.38C, at 208 (June 28, 2005). FAA cannot

“compel” Chicago to complete the O'Hare project. Nor

does Chicago need any compelling. Chicago designed

the plan for the project; it submitted that plan to the

FAA and fought for its approval. Vil/ of Bensenville,

457 F.3d at 65. Chicago will provide most of the

funding and is prepared to obtain funding from other

sources if federal money is unavailable. Jd. So even if

the FAA could compel Chicago to complete the project,

vacating the grant condition would not redress the

petitioners’ injuries because Chicago is committed to

completing the project anyway.

In addition, the court has already concluded that

vacating the $337 million in the LOI would not

redress petitioners' injuries because federal money

plays a “minor role” and Chicago could replace it with

other sources of funding. That conclusion alone seems

to sink the petitioners’ challenge to-the $29.3 million

grant. However, petitioners argue that redressability

conditions have changed because of a $400 million

cost overrun and the majority-in-interest airlines

refusing Chicago's request to issue more bonds. Thus,

according to petitioners, if the court overturns AIP

and PFC funding, Chicago can no longer replace that

funding. Petitioners again err by adding the PFC

authorization and the LOI to the single AIP grant

they challenge here. Moreover, they have not shown a

“substantial probability” that Chicago would scrap the

O'Hare project if the court vacated the $29.3 million

grant.

Petitioners claim they need not demonstrate such

“high probability” of redressability because 49 U.S.C.

§ 46110(a) and RFRA gives them a “procedural right”

to protect their interests, which they may assert

“without meeting all the normal standards for

redressability and immediacy,” Massachusetts v.

EPA, 549 U.S. 497, 127 S.Ct. 1438, 1453, 167 L.Ed.2d

248 (2007) (quoting Lujan v. Defenders of Wildlife,

504 U.S. 555, 573 n. 7, 112 S.Ct. 2130, 119 L.Ed.2d

351 (1992)). However, that rule applies only when a

party challenging an agency's procedural failure

cannot “establish with any certainty” that the agency

would reach a different decision. Lujan, 504 U.S. at

573 n. 7, 112 S.Ct. 2130; see also Fla. Audubon Soc'y

v. Bentsen, 94 F.3d 658, 664 (D.C.Cir.1996). But the

redressability obstacle the petitioners face is

uncertainty over what CAicago would do-not the FAA.

Thus, the petitioners must satisfy the normal

standard for redressability. They have not. “[I]t is

entirely conjectural whether the nonagency activity

that affects [petitioners] will be altered or affected by

the agency activity they seek to” overturn. Lujan, 504

U.S. at 571, 112 S.Ct. 2130 (plurality opinion).

Ill

Petitioners have not shown that the single $29.3

million grant has caused their injuries, or that the

court can redress those injuries. We therefore dismiss

their petition for lack of standing.

So ordered.