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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0557%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2009

## Text

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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

¥.

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.

xx

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.

Ta

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

BEST AVAILABLE COPY

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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.

xx

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

¥.

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0557%3A2. Public record. Not legal advice.