This post begins a new series reviewing the administrative law decisions of the Eleventh Circuit. The Eleventh Circuit is the third-busiest federal court of appeals, and it hears cases from Florida, Georgia, and Alabama.

Over the past two weeks, the court decided three cases of note. First, it vacated an injunction against the construction of a detention facility in Florida informally known as “Alligator Alcatraz.” Second, it denied review of a TSA order requiring Spirit Airlines to remit security fees collected from passengers, amid Spirit’s ongoing financial difficulties. Third, the court affirmed the denial of an injunction against an executive order regarding project labor agreements with unions.

NEPA Challenge to “Alligator Alcatraz”

In Friends of the Everglades v. Secretary of the U.S. Department of Homeland Security, a divided panel held that the plaintiffs failed to identify a final agency action or federal control of Florida’s construction of the detention facility informally known as “Alligator Alcatraz.” Florida used state funds to build the facility, although it plans to seek reimbursement from the federal government. And Florida currently manages the facility as an immigration detention center under an agreement with the Department of Homeland Security. See 8 U.S.C. § 1357(g). The district court preliminarily enjoined construction under the National Environmental Policy Act and the Administrative Procedure Act, and it prohibited state and federal officials from bringing additional detainees to the center.

The Eleventh Circuit first held that the plaintiffs failed to identify a final agency action. The court explained that the only federal action was the decision not to conduct an environmental review, which is not final agency action. Further, any request by the federal government for Florida to construct the facility did not determine rights or obligations. And the state’s agreement to adopt federal standards was state action, not federal action.

The court also held that the plaintiffs failed to prove a “major Federal action[]” under NEPA. 42 U.S.C. § 4332(C). The 2023 amendments to NEPA treat a non-federal action as federal action when there is both federal funding and federal control. Here, the facility was not federally controlled because any federal supervision and support pertained to operation of the facility (which is unreviewable under NEPA), rather than construction of the facility.

Finally, the court held that the injunction violated the Illegal Immigration Reform and Immigrant Responsibility Act insofar as it prohibited the detention of aliens at a particular facility. That was because the injunction “enjoin[ed] or restrain[ed] the operation of [8 U.S.C. §§ 1221-1231] . . . other than with respect to the application of such provisions to an individual alien.” 8 U.S.C. § 1252(f)(1).

Judge Abudu dissented. She disagreed with the majority’s level of deference to the district court, as well as its characterization of the federal role in the facility.

Security Fee Refunds, Guidance, and Fair Notice

In Spirit Airlines v. TSA, the Eleventh Circuit unanimously held that Spirit must remit certain security fees to TSA. Congress requires airlines to collect a fee of $5.60 per one-way flight from passengers, and it requires airlines to remit the fee to TSA. When some Spirit customers canceled flights and let their travel credits expire, Spirit retained those fees. U.S. Customs and Border Protection audited Spirit in 2019 and ordered it to turn over $2.8 million. TSA adopted CBP’s findings and denied Spirit’s administrative challenge.

The Eleventh Circuit first rejected Spirit’s argument that it did not owe security fees on the ground that non-flying customers are not “passengers.” 49 U.S.C. § 44940(a)(1). Although the court agreed with Spirit’s premise, it observed that the statue contemplates collecting fees from customers who do not eventually fly. In particular, the statute refers to “fees imposed and amounts collected,” 49 U.S.C. § 44940(e)(2), and contemplates “refund[s]” for “any amount paid in excess of that required,” 49 U.S.C. § 44940(g). 

The Eleventh Circuit next rejected Spirit’s argument that expired credits are refunds to customers and thus not owed to TSA. The court did not conduct its own statutory interpretation in this section. Instead, it relied on 2002 guidance that required a refund after a credit expires, which the Eleventh Circuit took to mean that an expired credit is not a refund.

Finally, the court reasoned that Spirit had fair notice of TSA’s interpretation. It found that notice in both the “plain text” of the statutory requirement to remit the funds and in the guidance requiring a refund when a credit expires. The court found it irrelevant that TSA failed to object to Spirit’s conduct in previous audits.

Executive Order on Project Labor Agreements

In Associated Builders and Contractors Florida First Coast Chapter v. General Services Administration, a divided panel affirmed the denial of a preliminary injunction against an executive order, regulations, and guidance relating to project labor agreements. An executive order issued by President Biden generally required federal construction contractors to enter project labor agreements with unions. President Trump left that mandate in place.

The Eleventh Circuit first held that the challengers proved irreparable harm. Of note, they showed irreparable harm under the Competition in Contracting Act of 1984 because Congress limited monetary relief in bid protests to “bid preparation and proposal costs.” 28 U.S.C. § 1491(b)(2). The court clarified that the availability of equitable remedies in a bid protest action does not preclude a preliminary injunction.

The Eleventh Circuit went on to affirm anyway, on the ground that the plaintiffs were unlikely to succeed on the merits of their facial challenges. The mandate complies with the Competition in Contracting Act’s requirement of “full and open competition,” 41 U.S.C. § 3301(a)(1), because the executive order and implementing regulations permit exceptions for “full and open competition” and compliance with “statutes” and “regulations.” 

The mandate also complies with the Federal Property Act because the statute gives the president substantial discretion to specify what he “considers necessary.” 40 U.S.C. § 121(a). The court first concluded that its splintered decision on the COVID-19 vaccine mandate for federal contractors “did not adopt a definitive interpretation” of the Federal Property Act. The court then read “necessary” broadly because it was used in a grant of discretion to the president, citing Learning Resources, Inc. v. Trump and Trump v. Hawaii. And it rejected the plaintiffs’ major-questions argument, both because the case involved proprietary (rather than regulatory) authority and because the power at issue is not sufficiently consequential.

Judge Abudu concurred in part and concurred in the judgment in part. She disagreed with the majority’s citation of Learning Resources and Hawaii to interpret the word “necessary.”