DiGiovanni v. FAA, (2nd Cir. 2007)
05-2747-agDiGiovanni v. FAA U N I T E D STATES COURT OF APPEALS F O R THE SECOND CIRCUIT S U M M A R Y ORDERR U L IN G S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMM A R YO R D E R S FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'SL O C A L RULE 0.23 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHERP A P E R IN WHICH A LITIGANT CITES A SUMM A R Y ORDER, IN EACH PARAGRAPH IN WHICH AC IT A T IO N APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX ORB E ACCOMPANIED BY THE NOTATION: "(SUMMARY ORDER)." UNLESS THE SUMM A R Y ORDER ISA V A I L A B L E IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUTP A Y M E N T OF FEE (SUCH AS THE DATABASE AVAILABLE AT HT T P : / / W W W . C A 2 . U S C O U R T S . G O VT H E PARTY CITING THE SUMM A R Y ORDER MUST FILE AND SERVE A COPY OF THAT SUMM A R YO R D E R TOGETHER WITH THE PAPER IN WHICH THE SU M M A R Y ORDER IS CITED. IF N O COPY IS S E R V E D BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION M U S T INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN W H I C H THE ORDER WAS ENTERED. A t a stated term of the United States Court of Appeals for the Second Circuit, held at t h e Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New Y o r k , on the 2n d day of October, two thousand seven. PRESENT: H O N O R A B L E JOSEPH M. McLAUGHLIN, H O N O R A B L E REENA RAGGI, C i r c u i t Judges, H O N O R A B L E EDWARD R. KORMAN,1 D i s t r ic t Judge. - R O N A L D T. DiGIOVANNI Petitioner, v. N o . 05-2747-ag THE FEDERAL AVIATION ADM IN IST RA TIO N, MARION C. BLAKELY, Administrator, Respondent. RO NA LD T. DiGIOVANNI, pro se A P P E A R IN G FOR PETITIONER: APPEARING FOR RESPONDENT: VICKI S. LEEMON, Manager, Adjudication Branch, AGC-430, Federal Aviation Administration, Washington, D.C. . P e t i ti o n for review from the Federal Aviation Administration. U P O N DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND D E C R E E D that the petition for review of a final order of the Federal Aviation A d m in is tr at io n ("FAA") is DENIED. Ro nald DiGiovanni, proceeding pursuant to 49U.S.C. § 46110(a), petitions pro se for r e v i e w of a final order of the FAA denying his request to revise agency regulations allowing C l a s s D controlled airspace to revert to Class G uncontrolled airspace during times when the airport traffic control tower is closed. DiGiovanni submits that the requested revision is necessary to promote safety and noise abatement. We assume the parties' familiarity with t h e facts and the record of prior proceedings, which we reference only as necessary to explain o u r decision. O u r jurisdiction to entertain this appeal is established by 49U.S.C. § 46110(c). See F r i e n d s of Gateway v. Slater, 257 F.3d 74, 77 (2d Cir. 2001). Our standard of review, how ever, is "extremely limited and highly deferential." Massachusetts v. EPA, 127 S.Ct. 1 4 3 8 , 1459 (2007) (discussing judicial review of agency's refusal to promulgate rule in e n v i r o n m e n ta l context) (internal quotation marks omitted). In general, courts will not set a s i d e agency actions unless they are "arbitrary, capricious, an abuse of discretion, or o t h e r w i s e not in accordance with law." 5U.S.C. § 706(2). When the challenged action is a r e f u s a l to initiate rulemaking, the standard may, in fact, operate "at the high end of the range" o f deference, so that rulemaking will be judicially ordered "only in the rarest and most c o m p e l l in g of circumstances." EMR Network v. FCC, 391 F.3d 269, 273 (D.C. Cir. 2004) ( i n te r n a l quotation marks omitted). This is not such a case. A t the outset we note that although DiGiovanni both before the agency and in this c o u r t questions the safety consequences of the existing FAA rule, that rule was p r o m u l g a t ed pursuant to the agency Administrator's statutory authority to "develop plans a n d policy for the . . . navigable airspace and [to] assign by regulation or order the use of the a i r sp a c e necessary to ensure the safety of aircraft and the efficient use of airspace." 49 U . S. C . § 40103(b)(1). Thus, our review is necessarily "limited to the narrow issues as d e f i n e d by the denial of the petition for rulemaking, and does not extend to a challenge of the a g e ncy's original action in promulgating the disputed rule." Nat'l Labor Relations Bd. Union v . Fed. Labor Relations Auth., 834 F.2d 191, 196 (D.C. Cir. 1987) (emphasis in original) (internal quotation marks omitted). T o begin, in reviewing the denial here at issue, we note that nothing in DiGiovanni's s u b m i s s io n s demonstrate that "a significant factual predicate" for the existing rule "has been rem ove d," a circumstance that a sister circuit has described as presenting "one of the s t r o n g e s t potential bases for overturning an agency's refusal to initiate rulemaking." EMR Netw ork v. FCC, 391 F.3d at 273 (internal quotation marks omitted). The record in this case satisfac torily demonstrates that, in denying DiGiovanni's request for rule revision, the FAA c o n s i d e re d the established criteria for processing such petitions: (1) the immediacy of safety o r security concerns raised by the petition, (2) the priority of other issues confronting the F A A , and (3) the availability of FAA resources to address the identified concerns. See 14 C.F .R. § 11.73(a). With respect to the last two factors, the agency explained that its present commitment o f resources to a strategic plan involving fifty rulemaking projects, some mandated by C o n g r e s s , required it to be selective in adding further rulemaking projects to its agenda. [A 1 5 ] Such a reason for denying a particular rulemaking request cannot be deemed arbitrary or c a p r i c i o u s . See EMR Network v. FCC, 391 F.3d at 273 (declining to overturn agency de cis io n to engage in rulemaking where decision "appears to represent the sort of prioritys e t ti n g in the use of agency resources that is least subject to second-guessing by courts"). As f o r the first factor, while the agency agreed with DiGiovanni that it would be "desirable that all airports served by an instrument procedure have controlled airspace," it noted that "this is not always possible." Thus, the FAA explained that it relied on pilots "to be vigilant and f o l l o w recommended traffic pattern and communication practices" when operating in u n c o n t r o ll e d airspace. In rejecting DiGiovanni's argument that safety and noise abatement m a n d a t e d revision of the existing rule, the FAA clarified the order governing the designation o f Class D airspace; corrected certain of DiGiovanni's assumptions about pre-1993 control z o n e s ; explained that noise abatement policies determined by airport management existed indep ende ntly of airspace classification; and noted the numerous operational regulations to ensure aircraft safety that applied without regard to airspace classification. DiGiovanni may d i s a g re e with the agency's safety assessment, but we cannot identify abuse of agency d i s c re t i o n in the challenged denial. The petition for review of the FAA's order of April 4, 2005 is hereby DENIED. FOR THE COURT: C A T H E R I N E O'HAGAN WOLFE, CLERK OF COURT By: Oliva M. George, Deputy Clerk 1 The Honorable Edward R. Korman, of the United States District Court for the E a s t e r n District of New York, sitting by designation.