                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT           FILED
                        ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             JULY 16, 2008
                               No. 07-15675
                                                           THOMAS K. KAHN
                           Non-Argument Calendar
                                                               CLERK
                         ________________________

                      D.C. Docket No. 07-00378-CV-F-N

ASSOCIATION OF CITIZENS TO PROTECT AND PRESERVE
THE ENVIRONMENT OF THE OAK GROVE COMMUNITY,
a voluntary, non-profit unincorporated association,

                                                        Plaintiff-Appellant,

                                     versus

FEDERAL AVIATION ADMINISTRATION,
RANS BLACK, in his official capacity as Jackson Airport's District Office,
KEAFUR GRIMES, in his official capacity as an employee and
responsible official of the Federal Aviation Administration,

                                                        Defendants-Appellees.
                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Alabama
                        ________________________

                                (July 16, 2008)

Before MARCUS, WILSON, and COX, Circuit Judges.

PER CURIAM:
       The Plaintiff, the Association of Citizens to Protect and Preserve the

Environment of the Oak Grove Community (“Association”), appeals the district

court’s judgment dismissing this action for lack of subject matter jurisdiction. We

affirm.1

       In its complaint, the Association alleges that the FAA arbitrarily issued a

Finding of No Significant Impact (“FONSI”) with respect to the proposed expansion

project at the Troy Municipal Airport in Troy, Alabama. It also alleges that the FAA

failed to follow its own regulations requiring additional review and approval of

certain mitigation measures. On appeal, the Association maintains that the district

court has jurisdiction over the first claim (the “FONSI claim”) because the FONSI is

not a final order, and therefore, 49 U.S.C. § 46110(a)2 does not divest the district

court of jurisdiction. The Association also argues the district court has jurisdiction

under the Administrative Procedure Act, 5 U.S.C. § 702, over its claim that the FAA




       1
              We review dismissals for lack of subject matter jurisdiction de novo. Barbour v.
Haley, 471 F.3d 1222, 1225 (11th Cir. 2006).
       2
                 “[A] person disclosing a substantial interest in an order issued by the . . . Federal
Aviation Administration . . . in whole or in part under this part, part B, or subsection (l) or (s) of
section 114 may apply for review of the order by filing a petition for review in the United States
Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States
for the circuit in which the person resides or has its principal place of business. The petition must
be filed not later than 60 days after the order is issued. The court may allow the petition to be filed
after the 60th day only if there are reasonable grounds for not filing by the 60th day.” 49 U.S.C. §
46110(a).
failed to comply with its own regulations (the “procedural claim”). The district court

correctly determined that it lacked jurisdiction over both claims.

                                 1. The FONSI Claim

      The parties disagree on whether § 46110 jurisdiction exists only over “final

orders,” and if it does, whether the FONSI in this case is a “final order.” The

Association argues that § 46110 grants the courts of appeals jurisdiction only over

final orders, and that the FONSI in this case is not final because it requires the City

of Troy to finalize its wetland mitigation plan prior to the start of construction. The

FAA responds that § 46110 jurisdiction extends to non-final agency orders. For

support, it cites our decision in George Kabeller, Inc. v. Busey, 999 F.2d 1417 (11th

Cir. 1993), which it argues stands for the proposition that “any suit concerning FAA

administrative action, whether final or not, lies within the exclusive jurisdiction of the

Circuit Court.” (Def.’s Br. at 19.)

      We agree with the Association that courts of appeals have § 46110 jurisdiction

only over an agency order that is “final.” See, e.g., City of Dania Beach, Fla. v. FAA,

485 F.3d 1181, 1187 (D.C. Cir. 2007); Americopters, LLC v. FAA, 441 F.3d 726, 735

(9th Cir. 2006); Aerosource, Inc. v. Slater, 142 F.3d 572, 578 (3d Cir. 1998). But we




                                            3
also acknowledge that Busey recognized a narrow exception to permit § 461103

jurisdiction where no order has been issued, the absence of “which might affect the

future adjudicative power of the circuit court.” Id. at 1422. In simpler terms, the

Busey exception applies when an agency’s failure to act results in a final order never

being issued, thereby indefinitely depriving the court of appeals of jurisdiction. This

is not that type of case. The Association does not allege that the FAA failed to issue

any order thereby depriving the courts of appeals of § 46110 review. Instead, the

Association challenges the order as being arbitrarily issued. Therefore, Busey does

not apply and we must determine whether the FONSI is a “final order.” We conclude

that it is.

        First, the FAA treats the FONSI as a final order. See R.1-1, Ex. B at 12 (“This

decision constitutes the Federal approval for the actions identified above . . . [and]

constitutes a Final Order of the Administrator subject to review by the courts of

appeals to the United States in accordance with 49 U.S.C. [§] 46110.”). While an

agency’s characterization of an order is not binding, it certainly is informative.

Aerosource, Inc., 142 F.3d at 579.




        3
               Busey involved § 46110’s predecessor, 49 U.S.C. app. § 1486(a) (1992). The statutes
do not materially differ.

                                                4
      Second, the FONSI is final because, while the City must fulfill certain

“mitigation measures,” the FAA did not condition issuance of the FONSI on the

City’s fulfillment of those measures. At no point has the FAA indicated that its

determination that the proposed airport expansion “will not have a significant effect

on the human environment,” 40 C.F.R. § 1508.13, is in any way dependent upon the

City’s satisfactory completion of these measures, which range from finalizing the

wetland mitigation plan to ministerial tasks such as obtaining construction permits.

      Finally, the complaint charges that the FAA acted arbitrarily in issuing the

FONSI, a claim which tests the propriety of the FONSI. If the FONSI were not in a

final form susceptible of meaningful review, this claim would not be ripe, as the

reviewing court would in essence be rendering an advisory opinion on a preliminary

administrative decision. We conclude the FONSI is a final order and courts of appeals

have exclusive jurisdiction over this claim under § 46110.

      Our determination that the FONSI is a final order necessarily resolves the

Association’s claim that the district court had jurisdiction under the Declaratory

Judgment Act (“DJA”), 28 U.S.C. § 4321, to decide whether the FONSI was a final

order. The DJA permits any court of the United States to “declare the rights and other

legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201(a).

However, that power exists only “[i]n the case of actual controversy within its

                                          5
jurisdiction.” Id. (emphasis added). The law is settled that the DJA itself does not

grant federal courts jurisdiction, but rather, authorizes a specific type of relief in cases

where jurisdiction already exists. Schilling v. Rogers, 363 U.S. 666, 677, 80 S. Ct.

1288, 1296 (1960). Because the district court does not have jurisdiction over the

FONSI claim, it lacked the power to render a declaratory judgment on the issue of

finality.

                               2. The Procedural Claim

       We turn now to the Association’s argument that the district court erred in

ruling that it lacked subject matter jurisdiction to consider its procedural claim against

the FAA. The Association asserts that the FAA has failed to comply with FAA Order

1050.1E, ¶ 405(g)(4), which states that the FAA should review and approve any

proposed changes in or deletion of a mitigation measure that was included as a

condition of approval of the FONSI. The Association alleges that the FAA has not

reviewed or approved the mitigation plan changes despite written requests for

immediate review. The Association argues the district court retains APA jurisdiction

over this claim, regardless of whether the FONSI is a final order. We disagree.

       The determination of whether the FAA conducted a mitigation measure review

as required by FAA Order 1050.1E, ¶ 405(g)(4) is intertwined with the merits of

deciding whether the FAA arbitrarily issued the FONSI. Therefore, it is properly

                                             6
raised in the courts of appeals under § 46110. See City of Oxford, Ga. v. FAA, 428

F.3d 1346, 1352-58 (11th Cir. 2005) (entertaining, on § 46110 petition after issuance

of a FONSI, plaintiff’s claim that the FAA failed to comply with its own regulations

and the procedural requirements of National Environmental Policy Act); City of

Dania Beach, 485 F.3d at 1189-91 (granting petition for § 46110 review after FAA

failed to engage in environmental review process required by FAA Order).

                                          3. Conclusion

       Because the FONSI is a final order, the courts of appeals have exclusive

jurisdiction under § 46110 to entertain a challenge to its issuance. The courts of

appeals also have jurisdiction over the Association’s procedural claim because it is

intertwined with the merits of the FONSI claim. We therefore affirm the district

court’s order dismissing both claims for lack of subject matter jurisdiction.4

       AFFIRMED.




       4
           The Association appealed the district court’s denial of its motion to alter or amend
judgment, which it filed under Fed. R. Civ. P. 59. See Notice of Appeal (R.1-27.) On appeal,
however, it did not brief the merits of this argument, and only mentioned it in a footnote. (Pl.’s Br.
at 7 n.2.) Consequently, we deem this argument waived. See Tallahassee Mem’l Reg’l Med. Ctr. v.
Bowen, 815 F.2d 1435, 1446 n.16 (11th Cir. 1987).

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