        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                Fifth Circuit

                                                                  FILED
                                                              November 10, 2008

                                 No. 07-60592                Charles R. Fulbruge III
                                                                     Clerk

LONNY J MENARD; ROXANN MENARD

                                           Petitioners
v.

FEDERAL AVIATION ADMINISTRATION

                                           Respondent



                         Petition for Review of Orders
                    of the Federal Aviation Administration


Before WIENER, GARZA, and DeMOSS, Circuit Judges.
DeMOSS, CIRCUIT JUDGE:
      In this case, we ask whether petitioners Lonny and Roxann Menard (“the
Menards”) may compel respondent, the Federal Aviation Administration (“FAA”)
to reverse course on two administrative decisions. The Menards contend that two
airspace orders made by the FAA in 2007 were arbitrary and capricious, or
alternatively, that the orders were subverted by prejudice, bias, or improper ex
parte communications. The Menards own a small turf runway in Berryville,
Texas, as do their neighbors, who have intervened in this case on the side of the
FAA, and whom we refer to collectively as “Aero Estates.” The Menards contend
that there is only room for one airport in their neighborhood, and that the FAA
                                        No. 07-60592

should be compelled to clip Aero Estates’ wings for good. We disagree, and put
an end to one maneuver in the parties’ ongoing dogfight.
                                                I.
       In the early 1980’s, the Aero Estates subdivision was created in Berryville,
Texas, near Lake Palestine. Central to the plan was a common runway to be
shared by the homeowners. The runway is oriented east-west, and is 60 feet wide
and 3,200 feet long. In 1984, the developer of the subdivision provided notice of
a landing area proposal to the FAA.1 After conducting an aeronautical study, the
FAA issued a “no objection” determination. In 1996, J.W. Isaacs, a subsequent
owner of Aero Estates, informed the FAA that he intended to deactivate the
airport. On July 1, 1996, the FAA notified Isaacs that the airport would be
removed from government charts.2 As a result, Aero Estates was not an
operational airport in the eyes of the FAA from 1996 to 2007.
       Around the time the FAA removed Aero Estates from its charts, the then-
owner of the Menards’ property filed a notice with the FAA of intent to establish
a runway. The runway is oriented east-west, and is 30 feet wide and either 1,600


       1
         The FAA is tasked with developing plans and policy for the safe and efficient use of
the nation’s airspace, and “may modify or revoke an assignment when required in the public
interest.” 49 U.S.C. § 40103(b)(1). This authority extends to airports that do not receive federal
funds—including the Menards’ and Aero Estates’ runways. See 14 C.F.R. § 157.1. Part 157 of
the Federal Aviation Regulations requires owners of such airports to provide notice to the FAA
of proposed changes affecting airspace. Id. § 157.3. The FAA then conducts an aeronautical
study of the proposal, and makes one of three determinations: “no objection,” “conditional,” or
“objectionable.” Id. § 157.7(b). “A conditional determination will identify the objectionable
aspects of a project or action and specify the conditions which must be met and sustained to
preclude an objectionable determination;” “[a]n objectionable determination will specify the
FAA’s reasons for issuing such a determination.” Id. While the FAA has the exclusive power
to regulate airspace, it cannot regulate land use or zoning affecting the siting of airports. See
id. § 157.7(a); Hoagland v. Town of Clear Lake, 415 F.3d 693, 697 (7th Cir. 2005).
       2
         According to Aero Estates, this designation arose from a misunderstanding, and
throughout the 1990’s and to the present date, the Aero Estates airport has remained active.
There is some support for this contention: an internal FAA email dated February 8, 2000
states that Aero Estates “has been a subject of controversy for at least four years. There is a
question as to whether Mr. Isaacs has the unilateral authority to close this airport.”

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                                  No. 07-60592

or 1,900 feet long. The runway’s western end is 600 feet north of the eastern end
of the Aero Estates runway; the neighboring runways are parallel but offset.
After conducting an aeronautical study, the FAA indicated on July 8, 1996 that
it had “no objection” to the establishment of an airport. The Menards bought the
property in 1999 and, inauspiciously, named their airport Paradise Point.
      In 2002, Aero Estates provided the FAA with a notice of intent to officially
reactivate its airport. After conducting a study, the FAA on January 17, 2003
issued an “objectionable” determination, because the airport would “have
overlapping air traffic patterns” with Paradise Point. In the following years, the
FAA reviewed several other notices concerning Aero Estates and Paradise Point.
First, the Menards sought to have Paradise Point’s status changed from private
to public use in 2003, to which the FAA issued a “no objection” determination.
The Menards also sought to establish a seaplane base near Paradise Point in
2003, to which the FAA initially objected due to its proximity to Paradise Point
and Aero Estates. The FAA later indicated that it did not object to a seaplane
base at a different location if the seaplane base’s traffic pattern did not overlap
with Paradise Point’s traffic pattern. However, a seaplane base was apparently
never added to aeronautical charts, nor were lane markers installed on Lake
Palestine to indicate a seaplane landing area.
      From 2003 onward, things really turned sour. The FAA received additional
complaints from Lonny Menard and another nearby property owner that aircraft
were using Aero Estates’ runway. Menard complained that use of the runway
created “an unsafe environment” on the ground and in the air, and asked the
FAA to ensure that the airspace around his airport was protected. The FAA
investigated the complaints and met with interested parties, but found
insufficient evidence to proceed with an enforcement action. See 14 C.F.R. §§
13.11, 91.13(a). The Menards also contacted their Congressman, who wrote to
the FAA on their behalf. In 2004, Aero Estates sought to establish a heliport; the


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FAA issued a “no objection” determination, despite a complaint from the
Menards that this would imperil the safety of operations at Paradise Point. In
August 2006, Aero Estates again gave the FAA notice of its intent to officially
reopen its airport, and the FAA again began an aeronautical study. Lonny
Menard wrote to the FAA to express his objection to changing the designation
of the Aero Estates runway. He urged the FAA to abide by its 2003
“objectionable” determination. The Menards simultaneously filed a state-court
lawsuit seeking to enjoin the allegedly unsafe use of Aero Estates’ runway.
According to the parties, that suit is still pending.
       While conducting the aeronautical study for Aero Estates’ proposal in early
2007, the FAA was informed by the Texas Department of Transportation that
Lonny Menard had requested that the Paradise Point airport not be listed by the
State as open to the public. Because this contravened the FAA’s 2003
designation of Paradise Point as a public airport, the FAA sent a letter to the
Menards on February 14, 2007 asking whether they wished to have Paradise
Point designated private. See 14 C.F.R. § 157.3(e) (requiring notice to the FAA
of proposed changes in the status of an airport). Lonny Menard responded in a
letter dated February 25, 2007 that he wanted the FAA “to hold publication of
the airport as ‘public’ at this time due to the serious SAFETY CONCERNS
arising from aircraft operations being conducted on an adjacent property and the
refusal by the pilots of those aircraft to respect the flight patterns designated by
your agency.” (emphasis in original). The FAA construed this response as a
request to change status under § 157.3(e), and opened a new aeronautical study.
In a letter dated May 30, 2007, Lonny Menard articulated his concerns in
greater detail.3

       3
         The letter stated at one point: “If the holding of publication as previously requested
(do not misinterpret this as a change in status, but merely as a hold due to safety concerns) has
created a problem . . . then please publish the same. However, if this airport is published for
public use without the prohibition of the dangerous conditions on the adjacent property, . . .

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       On June 7, 2007, the FAA released two “conditional” determinations; one
each for the airports at Aero Estates and Paradise Point. The determinations
allowed both airports to operate, provided that their respective users maintained
a divided air traffic pattern. Flights at Paradise Point were to take off and
approach from the north, while flights at Aero Estates were to take off and
approach from the south. The orders also required the users of the respective
airports to approach and leave the airspace at differing altitudes, to use the
Common Traffic Advisory Frequency, and to operate only during the daytime
and under visual flight rules (“VFR”). In the order for Aero Estates, the FAA
stated: “It was assumed that Paradise Point Airport would continue to have a
relatively short runway that would not generate enough air traffic to be a
problem with operations at the Aero Estates Airport.”
       Displeased with these determinations, the Menards filed the current
petition. They contend that the June 2007 orders are arbitrary and capricious
because they disregard evidence, contravene FAA rules and regulations, and
create a grave safety risk. The Menards also argue that the decision-making
process was subverted by bias, prejudice, and ex parte communications.
                                            II.
       An order issued pursuant to 14 C.F.R. § 157.7 is appealable under 49
U.S.C. § 46110(a) (formerly 49 U.S.C. app. § 1486).4 See Sandell v. FAA, 923 F.2d
661, 663 (9th Cir. 1990). Section 46110 vests this court with “exclusive
jurisdiction to affirm, amend, modify, or set aside any part of the order,” or to
order the Administrator to conduct further proceedings. 49 U.S.C. § 46110(c).
Before we proceed to the merits of the appeal, we must ensure that we have
jurisdiction. The FAA determinations at issue here are “advisory.” See 14 C.F.R.


then the FAA is taking the position of an ostrich—burying its head in the sand.”
       4
         In 1994, “Congress restated the laws related to transportation in one comprehensive
title.” Gustafson v. City of Lake Angelus, 76 F.3d 778, 783 n.3 (6th Cir. 1996).

                                             5
                                  No. 07-60592

§ 157.7(a). Nevertheless, we have previously treated appeals of “advisory” FAA
orders as reviewable and justiciable. Air Line Pilots’ Ass’n Int’l v. FAA, 446 F.2d
236, 240 (5th Cir. 1971) (hereinafter “Air Line Pilots”).
      In Air Line Pilots, we asked whether we could review an FAA finding that
three planned high-rises in Dallas, along with certain adjustments to flight
procedures for Dallas’s Love Field, would not create a hazard to air navigation.
Id. at 237. The FAA issued its ruling pursuant to its authority to determine
whether “Objects Affecting Navigable Airspace” will be hazardous to air
navigation. Id. at 237-38 (citing 14 C.F.R. §§ 77.1–77.15). The FAA argued that
the case was unreviewable because a determination under Part 77 has no
enforceable effect. Id. at 240. Applying Abbott Laboratories v. Gardner, 387 U.S.
136 (1967), we held that the issue was ripe for judicial resolution, and that
hardship would result for the parties if review were denied. Id. at 241-42. We
reasoned that even if the FAA’s decision had only the power of “moral suasion,”
such force was sufficiently “potent” to have significant practical effects on the
ground and in the air. Id. at 241. Therefore, the “advisory” nature of the FAA’s
order did not preclude judicial review. Id. at 241-42; accord Aircraft Owners &
Pilots Ass’n v. FAA, 600 F.2d 965, 966-67 & n.2 (D.C. Cir. 1979).
      We see no reason to differentiate between the “advisory” order rendered
pursuant to Part 77 in Air Line Pilots and the “advisory” orders rendered
pursuant to Part 157 in this case. We anticipate that, owing to “moral suasion”
or otherwise, the users of the airports at Paradise Point and Aero Estates will
abide by the FAA’s division of airspace. To do otherwise would imperil the pilots’
lives. Moreover, the consequences of the FAA’s determinations will be significant
in other arenas. For instance, Lonny Menard informed the FAA that he was
seeking an injunction against Aero Estates because “the developer and some
owners at Aero Estates refuse to heed the safety determinations by FAA;” the
outcome of this petition will directly impact that ongoing case. In sum, we are

                                        6
                                  No. 07-60592

convinced that the FAA’s determinations may be reviewed by this court. See
Sandell, 923 F.2d at 663-64 (holding that order issued pursuant to Part 157 was
reviewable).
      Additionally, we note for purposes of completeness that the Menards have
Article III and statutory standing to challenge the FAA orders. See BFI Waste
Sys. of N. Am., Inc. v. FAA, 293 F.3d 527, 531 (D.C. Cir. 2002) (hereinafter
“BFI”). The Menards have alleged that they will suffer a concrete and
particularized “injury in fact,” to-wit, an imminent risk of collision, injury, or
property damage; such harm is traceable to the FAA’s June 2007 airspace
orders; and the harm would be “redressable by a favorable decision” from this
court. See id.; see also Massachusetts v. EPA, 549 U.S. 497, 127 S. Ct. 1438, 1453
(2007). The Menards have a “substantial interest” in both of the June 2007
orders, and therefore have statutory standing to pursue this petition. See 49
U.S.C. § 46110(a).
                                       III.
      We now turn to the merits of the petition. We must apply the standard of
review of the Administrative Procedure Act (APA), under which we review the
administrative record and ask whether the FAA’s orders are “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A); see BFI, 293 F.3d at 532; Clark County v. FAA, 522 F.3d 437,
441 (D.C. Cir. 2008) (applying § 706(2)(A) because “[i]n [APA] parlance, the FAA
did not conduct formal, on-the-record hearings; rather, its . . . determinations
were the product of informal adjudication”) (emphasis in original). While our
inquiry must be thorough, the standard is “highly deferential . . . and we should
not substitute our own judgment for the agency’s.” Gulf Restoration Network v.
U.S. Dep’t of Transp., 452 F.3d 362, 368 (5th Cir. 2006) (quotations omitted).
Moreover, “[f]indings of fact . . ., if supported by substantial evidence, are
conclusive.” 49 U.S.C. § 46110(c).

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                                  No. 07-60592

      The Menards argue that the FAA acted arbitrarily and capriciously in
issuing the June 2007 orders because: (1) the FAA ignored their correspondence
and denied them an opportunity to be heard or present evidence; (2) the FAA did
not inform them that it was conducting a new aeronautical study of the Paradise
Point airport; (3) the FAA misconstrued the nature of their requests when it
altered the “public” status of Paradise Point; (4) the FAA did not provide a
reasoned analysis for reversing its 2003 finding that it would be unsafe for Aero
Estates and Paradise Point to operate in close proximity to one another; and (5)
the FAA failed to consider all of the evidence available to it, including DVDs
made by the Menards which allegedly show that aircraft were using the Aero
Estates runway in contravention of past FAA orders.
      The FAA responds that: (1) it received the Menards’ correspondence,
considered it, and included it in the administrative record, but was not obligated
to confirm receipt of each letter or forward the letters within the agency; (2) it
reasonably construed Lonny Menard’s letter of February 25, 2007 as a request
to change the public status of his airport, triggering a new aeronautical study
under § 157.7; (3) supplemental notice of its aeronautical study of Paradise Point
was not required in light of Lonny Menard’s letter; (4) it was reasonable to alter
its 2003 determination that pilots at Aero Estates could not fly safely because
the 2007 orders specified conditions that would allow both Paradise Point and
Aero Estates to operate safely; and (5) evidence of past use of Aero Estates’
runway was irrelevant because the FAA has no power to enforce airspace
decisions rendered pursuant to Part 157. Ultimately, the FAA argues that we
must give deference to its determination that the conditions specified in the June
7, 2007 orders will “ensure the safe and efficient use of airspace by aircraft and
the safety of persons and property on the ground.”
                                       A.



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                                     No. 07-60592

      The Menards have not shown that the FAA’s June 7, 2007 orders were
arbitrary or capricious. First, the administrative record refutes the Menards’
contention that they lacked an opportunity to be heard and had no notice of the
FAA’s aeronautical studies. The Menards’ correspondence was included in the
administrative record. Also, the FAA’s letter of February 14, 2007 notified the
Menards that airspace assignments near Paradise Point were under review.
Lonny Menard’s letters of February 25 and May 30, 2007, stating that he did not
want the public to use his airport, demonstrate a concern that the status quo
was creating safety risks. The FAA indicates that it treated the February 25
letter as a request to change the status of Paradise Point pursuant to § 157.3(e).
While the request was not submitted on an official form, the FAA’s Airspace
Procedures Order permits the FAA to begin action upon receiving informal
notice of a change from other sources. See Procedures for Handling Airspace
Matters, FAA Order 7400.2F § 11-2-1(f) (Feb. 16, 2006) (hereinafter “APO”).5
After learning that the Menards wanted their airport designated non-public by
the State of Texas, it was neither arbitrary nor capricious for the FAA to
construe the February 25 letter as a notice of intent to change the status of
Paradise Point. Lonny Menard’s indication on May 30 that he did not actually
wish to change the airport’s status does not undermine the reasonableness of the
FAA’s decision to conduct an aeronautical study.
      Moreover, Congress has tasked the FAA with making determinations of
how to safely apportion airspace. See 49 U.S.C. § 40103(b)(1) (granting the FAA
power to “modify or revoke an assignment when required in the public interest”).
This necessarily looks to the future. The alleged evidence of non-compliance with
past FAA directives by users of Aero Estates is therefore not determinative of
what prospective division of airspace is safe and efficient. Nothing in the


      5
       The APO has been amended effective April 10, 2008; the current version is Order
7400.2G. We will apply the APO in effect on June 7, 2007 when reviewing the FAA’s actions.

                                            9
                                        No. 07-60592

Aviation Regulations compels the FAA to punish Aero Estates for alleged past
violations of its directives, much less conclude that Aero Estates’ pilots are
scofflaws who must be grounded indefinitely.
                                               B.
       The crux of the Menards’ petition is their contention that the airports at
Paradise Point and Aero Estates cannot safely coexist. The Menards argue that
the FAA requires a buffer zone of .25 nautical miles (1519 feet) on the side of
runways opposite the traffic pattern to account for aircraft overshooting the
runway on the final turn. See APO §§ 10-3-2, fig. 10-3-5 & fig. 6-3-11. The
Menards argue that the FAA has acted contrary to its own safety guidelines, and
therefore its orders are arbitrary and capricious. The FAA submits that,
notwithstanding the buffer zone recommended by the APO, it has authority to
establish non-standard traffic patterns, assign specific traffic pattern altitudes,
or develop special operating procedures to mitigate potential airspace conflicts.
See APO § 11-6-3.6 The FAA contends that the June 2007 orders are consistent
with this authority.
       We agree. We believe that the sections of the APO cited by the Menards
do not compel a finding that Aero Estates and Paradise Point are absolutely
prohibited from operating simultaneously. The record amply supports the FAA’s
conclusion that both Aero Estates and Paradise Point can operate safely and
efficiently, if the airports abide by certain traffic patterns. This was premised in
part on the FAA’s finding that Paradise Point’s runway is short and generates
so little air traffic that it would not realistically conflict with Aero Estates. As
there is substantial evidence in the administrative record to support the FAA’s


       6
           “If the appropriate VFR or [Instrument Flight Rules] traffic pattern airspace area
requirements overlap or if airspace requirements cannot be developed to accommodate the
category and volume of aircraft anticipated at an existing or planned airport, the airport, in
all cases, need not be found objectionable from an airspace utilization standpoint if adjustments
to traffic patterns . . . would mitigate the conflict.” § 11-6-3(a) (emphasis added).

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determinations, we treat the findings as conclusive. See 49 U.S.C. § 46110(d).7
The FAA did revise its 2003 “objectionable” determination to the proposed
reactivation of Aero Estates. However, the original determination was
apparently based on an assumption that Paradise Point’s traffic pattern would
not be altered. By contrast, in 2007, the FAA was able to craft traffic patterns
for both airports simultaneously. Above all, adjusting air traffic patterns is part
of the FAA’s mandate. See id. § 40103(b)(1). The Menards cannot plausibly claim
that the FAA lacks authority to revise its past determinations, or that past FAA
orders create an entitlement to the airspace around Paradise Point. Therefore,
we do not believe that the FAA acted arbitrarily or capriciously in making the
air safety determinations contained in the June 2007 order.
                                               C.
       In a final point of error, the Menards argue that the FAA’s decision-
making process was subverted by prejudice, bias, or wrongful influence due to
ex parte communications with Aero Estates. The Menards aver that Aero Estates
hired Norm Scroggins, a consultant and retired FAA employee, to lobby the FAA
on their behalf. Scroggins allegedly engaged in improper communications and
character assassination to undermine the Menards’ case. The Menards believe
that this led the FAA to reach a foreordained decision. As proof, the Menards


       7
         A memorandum from the FAA Flight Standards District Office dated June 23, 2003
reasoned that “the Paradise Point airport remains much less of a going concern [than Aero
Estates], with clearly inferior aircraft operating areas and facilities. Locals interviewed stated
that no aircraft have operated there in a number of years.” Later, the same memorandum
stated: “This office acknowledges obvious adverse safety implications in the simultaneous use
of runways located in such close proximity. . . . It remains to be seen whether [Paradise Point]
is actually intended to be a viable airport or merely a bargaining chip in a dispute between two
competing land developers.”

        Similarly, when the FAA investigated Lonny Menard’s complaints about Aero Estates
in December 2004, Menard “did not provide a direct response” when asked how many
operations a day his airport supported, and stated that he did not have an airplane at the
airport. The investigators observed that the runway’s grass was long, standing water was
visible on the runway, and “a horse was grazing toward the other end of the runway.”

                                               11
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point to a September 1, 2006 memorandum by Ben Guttery, FAA Senior
Program Manager, which purportedly orders that Aero Estates be reactivated.
      The FAA responds that the Menards have put forth no evidence of
bias—other than a decision which runs contrary to their preferences. Moreover,
when making airspace utilization decisions, the FAA may consider written
correspondence, and “may consult with interested persons regarding the
substance of the proposal. This coordination may be accomplished through
interviews, conferences, informal airspace meetings . . . .” See Airspace
Utilization Considerations in the Proposed Construction, Alteration, Activation,
and Deactivation of Airports, FAA Advisory Circular 70-2E (Jan. 1, 1996). Ex
parte communications are prohibited during formal rulemaking, goes the
argument, but not during informal studies conducted pursuant to Part 157. See
APO § 2-1-1. The FAA acknowledges that a representative of Aero Estates met
with the FAA on September 29, 2006, and possibly once more in early 2007. The
meetings concerned statements made by the Menards, which Aero Estates
claimed were false or misleading. The FAA contends that it “did not base its
determinations on any of Aero Estates’ allegations” against the Menards, or the
allegations by the Menards against Aero Estates.
      “Actual bias is ordinarily required to invalidate decisions by federal
agencies.” DCP Farms v. Yeutter, 957 F.2d 1183, 1188 (5th Cir. 1992). “An
administrative decision will be overturned only when the hearing officers’ mind
is irrevocably closed or there was an actual bias.” Id. Moreover, “[a]dministrative
officers are presumed objective and ‘capable of judging a particular controversy
fairly on the basis of its own circumstances.’” Nuclear Info. & Res. Serv. v.
Nuclear Regulatory Comm’n, 509 F.3d 562, 571 (D.C. Cir. 2007) (quoting United
States v. Morgan, 313 U.S. 409, 421 (1941)). While the FAA should endeavor to
avoid ex parte communications, unyielding adherence to that principle during
informal studies would be fatal to the quick and efficient fulfillment of the

                                        12
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agency’s mandates. All contacts between the FAA and the interested parties
(including several letters and meetings between the FAA and the Menards) were
adequately documented, and the Menards have not put forth a scintilla of
evidence showing that bias or improper communications clouded the judgment
of the FAA. Contrary to the Menards’ assertions, Ben Guttery’s September 1,
2006 memorandum actually seeks the formal review of other FAA offices. It does
not reveal bias or a foreordained conclusion on the part of the agency or its
officers. It is therefore apparent to us that, rather than step into the cross-fire
of the parties’ ongoing feud, the FAA made its determinations based upon sound
aeronautical studies and the agency’s independent judgment.8
                                             IV.
       One might question whether two small airports located side-by-side can
both operate safely and efficiently. The FAA determined that this is indeed
possible under the conditions specified in its orders of June 7, 2007. “One does
not have a right to monopolize the navigable airspace if other people can safely
use it.” Sandell, 923 F.2d at 665. After thoroughly reviewing the administrative
record, we conclude that the FAA’s determinations are not “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law.” See 5 U.S.C. §
706(2)(A). The FAA’s orders will stand as issued. See 49 U.S.C. § 46110(c).
       The petition for review is DENIED.




       8
        The FAA noted in both orders “that a letter of agreement was not possible in this case
because of the intense dissension that has existed between the parties since at least 1999.”

                                             13
