In denying Respondents' motion to dismiss, the motions panel found that it had jurisdiction to review the Letter from the FAA to New York City as a “final order.” In support of its decision the motions panel cited New York v. FAA, 712 F.2d 806 (2d Cir.1983), in which the FAA refused to amend the operating certificate of the Republic Airport in Suffolk County, New York, thereby denying New York State the ability to operate the airport. The court held that it had jurisdiction to review the FAA order because it was a “final order” which “impose[d] an obligation, denie[d] a right, or fixe[d] some legal relationship” among the interested parties.
In denying Respondents' motion to dismiss, the motions panel found that it had jurisdiction to review the Letter from the FAA to New York City as a "final order." In support of its decision the motions panel cited New York v. FAA, 712 F.2d 806 (2d Cir. 1983), in which the FAA refused to amend the operating certificate of the Republic Airport in Suffolk County, New York, thereby denying New York State the ability to operate the airport. The court held that it had jurisdiction to review the FAA order because it was a "final order" which "impose[d] an obligation, denie[d] a right, or fixe[d] some legal relationship" among the interested parties.
2. Inherent Right to File Suit Assuming arguendo that FERPA and the accompanying enforcement provisions in § 1234c do not expressly authorize the Department and the United States to file suits to enforce FERPA's requirements, the Court still finds that they have the authority and standing to file this action. This finding is based on the United States' inherent right, regardless of express statutory authority, to sue a recipient of federal funding to enforce the terms and conditions of a federal grant. See Henke v. United States Dept. of Commerce, 83 F.3d 1445, 1450 (D.C. Cir. 1996); State of New York v. Federal Aviation Admin., 712 F.2d 806, 809 (2d Cir. 1983); United States v. Marion County Sch. Dist., 625 F.2d 607, 609 (5th Cir. 1980), cert. denied, 451 U.S. 910, 101 S.Ct. 1980, 68 L.Ed.2d 298 (1981); United States v. Baylor Univ. Med. Ctr., 564 F. Supp. 1495, 1498 (N.D.Tex.1983), aff'd in part, modified in part, vacated in part, 736 F.2d 1039 (5th Cir. 1984), cert. denied, 469 U.S. 1189, 105 S.Ct. 958, 83 L.Ed.2d 964 (1985); United States v. Tatum Independent Sch. Dist., 306 F. Supp. 285, 288 (E.D.Tex.1969); United States v. Frazer, 297 F. Supp. 319, 322-23 (M.D.Ala. 1968). Federal grants authorized by Congress create binding contracts between the United States and the recipient, and the United States has the authority to fix the terms and conditions upon which federal funds will be disbursed.
Thus, if the FAA order approving the ALP was, in fact, made pursuant to Section 1486 it is clear that exclusive jurisdiction to review that order rests with this court. Gaunce v. deVincentis, 708 F.2d 1290 (7th Cir. 1983); City of Aurora v. Hunt, 749 F.2d 1457 (10th Cir. 1984); City of Alexandria v. Helms, 728 F.2d 643 (4th Cir. 1984); State of New York v. FAA, 712 F.2d 806 (2d Cir. 1983); City of Rochester v. Bond, 603 F.2d 927 (D.C. Cir. 1979). Suburban advances three arguments in support of its contention that the FAA's order of November 14, 1984 is reviewable only in the district court.
In general, circuit courts have directed that the term "order" in Section 46110(a) should be interpreted broadly to encompass any final, non-rulemaking decision issued by an agency. See State of N.Y. v. F.A.A., 712 F.2d 806, 808 (2d Cir. 1983) ("we have also defined as final an order which imposes an obligation, denies a right, or fixes some legal relationship" (internal quotations omitted)); Gilmore v. Gonzales, 435 F.3d 1125 1132 (9th Cir. 2006) ("Courts have given a broad construction to the term `order' in Section 1486(a) [46110's predecessor]." (internal quotations omitted, alterations in original)); Aviators for Safe and Fairer Regulation, Inc. v. F.A.A., 221 F.3d 222, 225 (1st Cir. 2000) ("The term `order' is read expansively in review statutes generally").
We have broadly construed the word "order" as used in section 46110(a) because of its function in providing for judicial review. Thus, we recently held that "order" in section 46110(a) "should be read `expansively'" but limited our construction to " this provision" — referring to section 46110(a) only. City of Dania Beach v. FAA 485 F.3d 1181, 1187 (D.C. Cir. 2007) (emphasis added) (quoting Aviators for Safe Fairer Regulation, Inc. v. FAA, 221 F.3d 222, 225 (1st Cir. 2000)); see also Aviators, 221 F.3d at 225 ("The term `order' is read expansively in review statutes generally . . . and this statute specifically."); Aerosource, Inc. v. Slater, 142 F.3d 572, 578 (3d Cir. 1998) ("[T]o be reviewable under section 46110(a), an `order' must be final, but need not be a formal order. . . ."); New York v. FAA, 712 F.2d 806, 808 (2d Cir. 1983) ("For purposes of review under [predecessor provision to section 46110(a)], the term `order' should receive a liberal construction."). Indeed, we have long recognized a species of FAA action — a so-called "informal adjudication" — that qualifies as a reviewable "order" under section 46110(a).
Several courts have emphasized that the term "order" in this provision should be read "expansively." See Aviators for Safe Fairer Regulation v. FAA, 221 F.3d 222, 225 (1st Cir.2000) (noting that "[t]he term `order' is read expansively in review statutes generally and this statute specifically" (citations omitted)); New York v. FAA, 712 F.2d 806, 808 (2d Cir.1983). A reviewable order under 49 U.S.C. § 46110(a) "must possess the quintessential feature of agency decisionmaking suitable for judicial review: finality."
Whether a notice thus limited would be reviewable is beside the point; here, the FAA's "notice" adopts a firm interpretation of an existing regulation. The term "order" is read expansively in review statutes generally, 5 U.S.C. § 551 (6) (1994) (an "order" includes "the whole or a part of a final disposition, [including those] declaratory in form"), and this statute specifically, New York v. FAA, 712 F.2d 806, 808 (2d Cir. 1983); Northwest Airlines, Inc. v. Goldschmidt, 645 F.2d 1309, 1313-14 (8th Cir. 1981). To that extent, the notice here qualifies as a reviewable "order," assuming other conditions (e.g., finality, ripeness) are met.
Moreover, in determining which orders fall under the FAA Act, the term "order" should be construed broadly. State of New York v. F.A.A., 712 F.2d 806, 808 (2d Cir. 1983). As the court in Media Access Project noted, other courts have addressed the issue of which FAA decisions encompass an "order" under the FAA Act and therefore receive direct review in the appellate courts.
We have held that for purposes of review under 49 U.S.C. § 1486(a) the word "order" should be construed liberally. State of New York v. F.A.A., 712 F.2d 806, 808 (2d Cir. 1983). Although only final orders are reviewable, McManus v. C.A.B., 286 F.2d 414, 417 (2d Cir.), cert. denied, 366 U.S. 928, 81 S.Ct. 1649, 6 L.Ed.2d 388 (1961), we have defined a final order as one which "imposes an obligation, denies a right, or fixes some legal relationship."