11-2720-ag
Paskar v. FAA


                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT
                                  SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER").
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on the
12th day of June, two thousand twelve.

PRESENT:        DENNY CHIN,
                RALPH K. WINTER,
                CHRISTOPHER F. DRONEY,
                               Circuit Judges.

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KENNETH D. PASKAR, FRIENDS OF
LAGUARDIA AIRPORT, INC.,

                       Petitioners,


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FEDERAL AVIATION ADMINISTRATION,
MICHAEL P. HUERTA, ACTING ADMINISTRATOR,
FEDERAL AVIATION ADMINISTRATION,
               Respondents.
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FOR PETITIONERS:                      RANDY M. MASTRO, Gibson, Dunn &
                                      Crutcher LLP, New York, New
                                      York, Steven M. Taber, Taber Law
                                      Group, Irvine, CA.

FOR RESPONDENTS:                      ABBY C. WRIGHT, Attorney, Appellate
                                      Staff Civil Division (Tony West,
                                      Assistant Attorney General, Michael
                                      Jay Singer, Attorney, Appellate Staff
                                      Civil Division, on the
                                      brief),Department of Justice,
                                      Washington, D.C.
                                 Robert S. Rivkin, General Counsel,
                                 Paul M. Geiger, Assistant General
                                 Counsel for Litigation, Joy Park,
                                 Trial Attorney, Department of
                                 Transportation, Washington, D.C.

                                 Daphne Fuller, Assistant Chief
                                 Counsel, Jonathan Cross, Branch
                                 Manager, Elizabeth Newman, Staff
                                 Attorney, Federal Aviation
                                 Administration, Washington, D.C.



             Petition for review of an order of the Federal Aviation

Administration (the "FAA").
             UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the petition for review is DENIED.

             Petitioners Kenneth D. Paskar and Friends of LaGuardia

Airport, Inc. seek review of an order of the FAA dismissing the City

of New York (the "City") from an action brought on a "Complaint and

Request for Investigation" under Part 16 of the FAA regulations.       14

C.F.R. Part 16.    Petitioners allege that the FAA and the City have

violated grant assurances in agreements between the FAA and the Port

Authority of New York and New Jersey (the "Port Authority") for

funding for LaGuardia Airport ("LaGuardia").

             Under § 46110(c) of the Federal Aviation Act, 49 U.S.C. §

46110(c), the FAA's factual findings are conclusive if they are

supported by "substantial evidence."     49 U.S.C. § 46110(c).   Under

the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), an agency's

application of law to fact is upheld unless it is "arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance

with law."    Natural Res. Def. Council, Inc. v. FAA, 

,

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555 (2d Cir. 2009) (internal quotations omitted).    This Court defers

to the FAA's interpretation of a statute if the interpretation is

reasonable.   Chevron U.S.A., Inc. v. Natural Res. Def. Council,

Inc., 

, 842-44 (1984).     We defer to the FAA's

interpretation of its own regulations unless the interpretation is

"plainly erroneous or inconsistent with the regulation."       Auer v.

Robbins, 

, 461 (1997) (internal quotations omitted).

          Upon review of the administrative record and consideration

of the parties' arguments, we hold that the FAA's factual findings

were supported by substantial evidence, and its application of the

law to the facts is not arbitrary or capricious, or an abuse of

discretion, or otherwise not in accordance with law.     The City is

not a signatory or party to the grant agreements, nor is it a proper

Part 16 "respondent" as defined in 14 C.F.R. § 16.3, as the City is

not a "sponsor, proprietor, or operator" of the airport.       14 C.F.R.

§ 13.3(d).

          Although the City owns the land upon which LaGuardia sits,

the Port Authority is the operator of LaGuardia and leases the land

from the City.   The City does not qualify as a "sponsor" under the

terms of the grant agreement, statute, see 49 U.S.C. § 47102(26), or
regulations, see 14 C.F.R. § 16.3, because it is not an agency that

receives financial assistance from the FAA.     The City is not a

"proprietor" because ownership alone is not sufficient to warrant

proprietor status, and the City does not "operate" the airport.      See

San Diego Unified Port Dist. v. Gianturco, 

, 1317 (9th

Cir. 1981) (holding that the owner, operator and promoter of an

airport was the proprietor).

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          We have considered all of petitioners' remaining arguments

and conclude that they are without merit.   Accordingly, the petition

for review is DENIED.


                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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