Township of Tinicum, Delaware County, Pennsylvania v. United States of America Department of Transportation, Office of the Secretary,…

Honorable Marvin J. Garbis, Senior United States District*
Judge for the District of Maryland, sitting by designation.
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-1830
_____________
TOWNSHIP OF TINICUM, DELAWARE COUNTY,
PENNSYLVANIA,
Petitioner
v.
UNITED STATES OF AMERICA DEPARTMENT OF
TRANSPORTATION,
OFFICE OF THE SECRETARY, WASHINGTON, D.C.
AIR TRANSPORT ASSOCIATION OF AMERICA,
INC.;
AIRPORTS COUNCIL INTERNATIONAL-NORTH
AMERICA,
Intervenors
(Pursuant to Clerk Order dated 4/28/08)
On Petition for Review of an Order of the
United States Department of Transportation
Order 2008-3-18
Argued January 6, 2009
Before: CHAGARES and HARDIMAN, Circuit Judges, and
GARBIS , District Judge.*

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(Filed: September 14, 2009)
Francis G.X. Pilleggi (argued)
Sheldon K. Rennie
Sophia Siddiqui
Fox Rothschild
919 N. Market St.
Citizens Bank Ctr., Ste. 1300
Wilmington, DE 19801
Counsel for Petitioner
Dale C. Andrews
Paul M. Geier
Mary F. Withum (argued)
U.S. Department of Transportation
Office of General Counsel
1200 New Jersey Ave, S.E.
Washington, DC 20590
Robert B. Nicholson
Robert J. Wiggers
U.S. Department of Justice
Appellate Section
950 Pennsylvania Ave., N.W.
Washington, DC 20530
Counsel for Respondent
M. Roy Goldberg (argued)
Sheppard, Mullin, Richter & Hampton
1300 I St., N.W., 11th Fl. E.
Washington, DC 20005
Vincent A. LaMonaca
J. Denny Shupe
Schnader Harrison Segal & Lewis
1600 Market St., Ste. 3600
Philadelphia, PA 19103
Counsel for Intervenor Air Transport Association of America,
Inc.

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Scott P. Lewis
Douglas H. Wilkins
Anderson & Kreiger
1 Canal Park, Ste. 200
Cambridge, MA 02141
Counsel for Intervenor Airports Council International-North
America
_____________
OPINION OF THE COURT
_____________
CHAGARES, Circuit Judge.
This case requires us to determine whether a municipality
may, consistent with the Anti-Head Tax Act (“AHTA”), 49 U.S.C.
§ 40116, require airlines to pay a tax every time one of their flights
lands within the municipality’s borders. Tinicum Township
(“Tinicum”) enacted an ordinance establishing just such a tax.
Airline industry groups complained to the Department of
Transportation (“DOT”), arguing that the tax violated the AHTA.
The DOT agreed with the industry groups and issued a declaratory
order invalidating the ordinance. Tinicum filed a petition for
review, and we will deny that petition.
I.
The City of Philadelphia (“City”) owns and operates the
Philadelphia International Airport (“Airport”). Some of the
Airport’s runways, however, are located within Tinicum’s borders.
About fifty years ago, a dispute arose over whether Tinicum could
charge the City property tax for the Airport’s use of that land.
Rather than litigate the matter to completion, Tinicum and the City
settled. The City agreed to make periodic payments to Tinicum in
exchange for continued runway access. But that agreement expired
– and the payments, which amounted to as much as $1.1 million
per year, stopped – in May 2007. Unable to reach a new agreement
with the City, on June 18, 2007 Tinicum enacted Ordinance 2007-
809, which provides:

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[T]here shall be imposed upon all aircraft users a privilege
fee . . . for use of property located within Tinicum
Township for landing of aircraft [of] $.03 per one thousand
(1,000) pounds of part thereof of approved maximum
landed weight. Fees will be determined by weight listed in
the Federal Aviation Administration [(“FAA”)] type
certificate data sheet.
Appendix (App.) 26-27.
The ordinance became effective on July 18, 2007. App. 28.
Over the course of the next month, passenger airlines (including
United, Southwest, and Delta) and parcel shippers (including
Federal Express and United Parcel Service) landed flights at the
Airport on runways located within Tinicum, but refused to pay the
tax. The Air Transport Association (“ATA”) and the Air Carrier
Association of America (“ACAA”), industry groups whose
membership includes many of those carriers, petitioned the DOT
to review the ordinance and invalidate it on the ground that it
violated the AHTA. After receiving written submissions from
ATA, ACAA, Tinicum, and other interested parties, the DOT
issued an order agreeing with the industry groups and declaring the
ordinance invalid. Tinicum then filed a petition for review of the
DOT’s administrative order. ATA and the Airports Council
International-North America (“ACI-NA”), a coalition of local
governments that own and operate airports, entered the case as
intervenors, urging the denial of Tinicum’s petition for review.
II.
The DOT had subject matter jurisdiction over the ATA and
the ACAA’s petition for a declaratory order pursuant to 49 U.S.C.
§ 40113(a). This Court has subject matter jurisdiction to review
the DOT’s declaratory order pursuant to § 46110(a) and (c).
The DOT is charged with administering the AHTA. See
Nw. Airlines, Inc. v. County of Kent, Mich., 510 U.S. 355, 366-67
(1994) (“The Secretary of Transportation is charged with
administering the federal aviation laws, including the AHTA.”).
We therefore review the DOT’s interpretation of that statute using

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the framework established in Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984):
First, always, is the question whether Congress has directly
spoken to the precise question at issue. If the intent of
Congress is clear . . . the court . . . must give effect to th[at]
unambiguously expressed intent . . . . [I]f the statute is
silent or ambiguous with respect to the specific issue, the
question for the court is whether the agency’s answer is
based on a permissible construction of the statute.
Id. at 842-43.
III.
In 1970, Congress enacted federal head taxes – uniform,
per-person tolls – on airplane passengers in order to raise money to
help states and municipalities develop local airports. See Aloha
Airlines, Inc. v. Dir. of Taxation, 464 U.S. 7, 8-9 (1983)
(discussing federal efforts to assist local airports). In 1972, the
Supreme Court in Evansville-Vanderburgh Airport Authority
District v. Delta Airlines, Inc., held that states, too, may enact head
taxes on interstate air travel. 405 U.S. 707, 716-17 (1972). The
Court explained:
At least so long as the toll is based on some fair
approximation of use or privilege for use [of a state
facility], . . . and is neither discriminatory against interstate
commerce nor excessive in comparison with the
governmental benefit conferred, it will pass constitutional
muster, even though some other formula might reflect more
exactly the relative use of the state facilities by individual
users.
Id.
Congress became concerned that the Court’s decision
opened the floodgates for a hodgepodge of local head taxes
and similar taxes that could complicate interstate air travel.
See County of Kent, 510 U.S. at 363 (discussing Congress’s
perception of Evansville-Vanderburgh). So, in 1973,

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Congress enacted the AHTA, 49 U.S.C. § 1513, which
prohibited a wide array of state head taxes and other
functionally similar tolls. See id. Congress has since
amended the statute several times, and it is now codified at
§ 40116.
Immediately prior to recodification at § 40116, the AHTA
provided:
(a) Prohibition; exemption. No state (or political
subdivision thereof . . .) shall levy or collect a tax, fee, head
charge, or other charge, directly or indirectly, on persons
traveling in air commerce or on the carriage of persons
traveling in air commerce or on the sale of air transportation
or on the gross receipts derived therefrom . . . .
(b) Permissible States taxes and fees. Except as provided in
subsection (d) of this section [prohibiting certain tolls
deemed to unreasonably burden interstate commerce],
nothing in this section shall prohibit a State (or political
subdivision thereof . . .) from the levy or collection of taxes
other than those enumerated in subsection (a) of this
section, including property taxes, net income taxes,
franchise taxes, and sales or use taxes on the sale of goods
or services; and nothing in this section shall prohibit a State
(or political subdivision thereof . . .) owning or operating an
airport from levying or collecting reasonable rental charges,
landing fees, and other service charges from aircraft
operators from the use of airport facilities.
. . . .
(f) Flight takeoff or landing requirement for State taxation.
No State . . . or political subdivision thereof shall levy or
collect any tax on or with respect to any flight of a
commercial aircraft or any activity or service on board such
aircraft unless such aircraft takes off or lands in such State
or political subdivision as part of such flight.
49 U.S.C. § 1513 (1994).

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Congress recodified the AHTA and relocated it to § 40116
via Public Law 103-272. Section 1 of that law set forth the new
text:
(b) Prohibitions. Except as provided in subsection (c) of
this section and section 40117 of this title, a State [or]
political subdivision of a State . . . may not levy or collect a
tax, fee, head charge, or other charge on – (1) an individual
traveling in air commerce; (2) the transportation of an
individual traveling in air commerce; (3) the sale of air
transportation; or (4) the gross receipts from that air
commerce or transportation.
(c) Aircraft taking off or landing in State. A State or
political subdivision of a State may levy or collect a tax on
or related to a flight of a commercial aircraft or an activity
or service on the aircraft only if the aircraft takes off or
lands in the State or political subdivision as part of the
flight.
(d) Unreasonable burdens and discrimination against
interstate commerce.
. . . .
(2)(A) A State, political subdivision of a State, or authority
acting for a State or political subdivision may not do any of
the following acts because those acts unreasonably burden
and discriminate against interstate commerce: . . .
(e) Other allowable taxes and charges. Except as provided
in subsection (d) of this section, a State or political
subdivision of a State may levy or collect – (1) taxes (except
those enumerated in subsection (b) of this section),
including property taxes, net income taxes, franchise taxes,
and sales or use taxes on the sale of goods or services; and
(2) reasonable rental charges, landing fees, and other service
charges from aircraft operators for using airport facilities of
an airport owned or operated by that State or subdivision.

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For ease of reference, throughout this opinion we shall call1
a commercial flight to which a tax relates, the tax’s “subject flight”
(because that flight is the subject of the tax).
8
Pub. L. No. 103-272, § 1(e), 108 Stat. 745, 1111-12 (1994)
(codified at § 40116). Later in the recodification law, Congress
provided: “Sections 1-4 of this Act restate, without substantive
change, laws enacted before July 1, 1993, that were replaced by
those sections. Those sections may not be construed as making a
substantive change in the laws replaced.” § 6(a), 108 Stat. at 1378.
In 1996, Congress proposed an amendment to the AHTA
that would have removed subsection (b)’s reference to subsection
(c) as an “[e]xcept[ion]” to the ban on the four enumerated
categories of taxes. H.R. Rep. No. 104-714(I), at 11, reprinted in
1996 U.S.C.C.A.N. 3658, 3658 (proposing amendment to H.R.
3539, 104th Cong. (1996)). The House and Senate reports
accompanying this proposed amendment called the reference a
“mistake.” H.R. Rep. No. 104-714(I), at 48-49, reprinted in 1996
U.S.C.C.A.N. 3658, 3685-86; S. Rep. No. 104-333, at 28 (1996).
This amendment was never enacted.
IV.
Determining whether a tax passes AHTA muster begins
with § 40116(b). That provision bans four categories of local
taxes: taxes on “(1) an individual traveling in air commerce; (2)
the transportation of an individual traveling in air commerce; (3)
the sale of air transportation; [and] (4) the gross receipts from that
air commerce or transportation.” The ban, however, operates
“[e]xcept as provided in subsection (c),” which states that a
municipality “may levy or collect a tax on or related to a flight of
a commercial aircraft or an activity or service on the aircraft only
if the aircraft takes off or lands in the [taxing locale].” 49 U.S.C.
§ 40116(b), (c).
Suppose a municipality enacts a tax that falls within one of
the four categories enumerated in subsection (b). Suppose the tax
relates to a commercial flight. And suppose that flight arrives in1

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For ease of reference, throughout this opinion we shall say2
that a flight that arrives in or departs from the taxing municipality
has a “ground nexus” with the taxing municipality (because that
flight makes contact with – and does not simply fly over – the
taxing municipality).
The petition also presents questions implicating other3
subsections of the AHTA, other federal statutes, and international
agreements. Because we resolve the case on subsection (c)
grounds, we do not answer those questions.
For its subsection (c) analysis, the DOT appears to have4
assumed (without deciding) that Tinicum’s ordinance does indeed
impose a “tax” – and not a “fee” or “charge” – within the meaning
of the AHTA. We do the same.
Tinicum conceded as much when it admitted that only a5
savings clause could rescue the tax from condemnation. See App.
141 (arguing that the tax is “permissible because the [AHTA]
provides a specific exception for [it,]” not because it avoids the ban
in the first place (citing, inter alia, 49 U.S.C. § 40116(c)) (emphasis
added)) (Tinicum submission to DOT).
9
or departs from the taxing municipality. Does subsection (c) save2
the tax from the categorical ban? That is the question presented by
Tinicum’s petition for review, and we answer it in the negative.3
A.
The DOT held that the tax imposed by Tinicum’s ordinance
violates the AHTA. It held that the tax falls within subsection4
(b)’s categorical ban, and that subsection (c) does not save it.5
The DOT had before it two competing interpretations of
subsection (c). The industry groups read it to provide that a tax on
a subject flight that lacks a ground nexus to the taxing jurisdiction
cannot pass AHTA muster, regardless of whether the tax falls
within the categorical ban. According to the industry groups,
subsection (c) says nothing about the fate of a tax on a subject
flight that does have such a nexus. Tinicum read subsection (c) as

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a savings clause providing that a tax on a subject flight that has
such a ground nexus always escapes condemnation at the hands of
the categorical ban (though the tax still, of course, must navigate
the AHTA’s other prohibitions). The DOT held that the industry
groups’ interpretation is the correct one.
The DOT based its decision primarily on the recodification
law. That law declares that § 40116 reenacted § 1513 “without
substantive change,” and Tinicum concedes that § 1513(f) – §
40116(c)’s predecessor – would not have saved the tax. Surely, the
DOT reasoned, Congress could not have intended that language to
accompany a radical revision of § 1513(f), which is precisely what
reading subsection (c) as a savings clause would accomplish. The
DOT also held that reading subsection (c) as a savings clause
would too easily allow a municipality to circumvent the categorical
ban: a municipality could enact a tax belonging to any of the
banned categories so long as it drafted the tax to include a subject
flight having a ground nexus to the taxing jurisdiction – a feature
that arises naturally in local taxes (like those covered by the ban)
on air travel.
The DOT determined, however, that subsection (c), even
when not construed as a savings clause, did not perfectly mesh with
the rest of the AHTA. In particular, it posited that even when not
construed as a savings clause, subsection (c) would conflict with
subsection (b)’s opening clause indicating that subsection (c) is an
“[e]xcept[ion]” to the categorical ban. The DOT solved this
problem by holding that in light of the recodification law’s clear
command, the AHTA should be read as if that offending clause of
subsection (b) were deleted.
Tinicum filed a petition for review of the DOT’s order,
essentially reprising the arguments it made during the
administrative proceedings. First, Tinicum argues that the text of
subsection (c) and subsection (b)’s opening clause indicate that
subsection (c) saves from the categorical ban any tax on a subject
flight that has a ground nexus to the taxing locale. Second,
Tinicum asserts that consulting § 1513(f) to shed light on the
meaning of § 40116(c) is inappropriate, notwithstanding the
recodification law, because Congress could have reenacted the

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statute’s original language verbatim, but did not. And third,
Tinicum contends that examining the legislative history of the
rejected amendment to remove subsection (b)’s opening clause is
not an appropriate way to determine the meaning of the AHTA that
Congress actually enacted.
B.
We begin our analysis by determining “whether Congress
has directly spoken to the precise question at issue. If the intent of
Congress is clear . . . [we] . . . must give effect to th[at]
unambiguously expressed intent.” Chevron, 467 U.S. at 842-43.
Tinicum contends that the AHTA’s text dictates that subsection (c)
functions as a savings clause, and makes two arguments in support
of its contention.
1.
Tinicum first urges us to focus on the text of subsection (c)
itself. That provision states that a municipality “may” tax a
commercial flight only if the flight has a ground nexus to the
municipality. Tinicum argues that the word “may” indicates a
grant of permission to do whatever act the text immediately
following that word describes. Therefore, Tinicum concludes,
subsection (c) grants a municipality the authority to tax a flight
with a ground nexus to the municipality, notwithstanding
subsection (b)’s categorical ban.
We disagree with Tinicum’s argument. The statutory text
following “may” is “levy . . . a tax . . . related to a flight of a
commercial aircraft . . . only if the aircraft takes off or lands in the
[taxing locale].” § 40116(c) (emphasis added). It is not “levy . . .
a tax . . . related to a flight of a commercial aircraft . . . if the
aircraft takes off or lands in the [taxing locale].” This distinction
makes a difference. See Carver v. Lehman, 558 F.3d 869, 876 n.12
(9th Cir. 2009) (explaining that “[t]he distinction between ‘if’ and
‘only if,’ [] is not a mere quibble over vocabulary”).
The phrase “only if” describes a necessary condition, not a
sufficient condition. See California v. Hodari D., 499 U.S. 621,

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627-28 (1991) (explaining that “only if” describes “a necessary, but
not a sufficient, condition”) (emphasis in original). A necessary
condition describes a prerequisite. See id.; Alden Mgmt. Servs. v.
Chao, 532 F.3d 578, 581 (7th Cir. 2008). For example, making the
playoffs is a necessary condition for winning the Major League
Baseball World Series because a team cannot win the World Series
if it does not make the playoffs. Using the “only if” form: a team
may win the World Series only if it makes the playoffs. But, a
team’s meeting the necessary condition of making the playoffs
does not guarantee that the team will win the World Series.
The word “if” describes a sufficient condition. See Alden
Mgmt., 532 F.3d at 581; cf. Hodari D., 499 U.S. at 628. A
sufficient condition is a guarantee. See Alden Mgmt., 532 F.3d at
581. For example, winning the division is a sufficient condition for
making the playoffs because a team that wins the division is
ensured a spot in the playoffs. Using the “if” form: a team makes
the playoffs if it wins its division.
Subsection (c), by invoking “only if,” describes a necessary
condition. It provides that a tax on a subject flight that lacks a
ground nexus to the taxing jurisdiction cannot pass AHTA muster
(regardless of whether the tax falls within the categorical ban), but
it says nothing about the fate of a tax on a subject flight that does
have such a nexus.
Tinicum’s cases emphasizing the permissive nature of the
word “may” simply are inapposite. They discuss statutes that do
not contain the “only if” connective or similar restrictive language.
See In re New Haven Projects Ltd. Liab. Co., 225 F.3d 283, 286-87
(2d Cir. 2000) (interpreting 11 U.S.C. § 505(a)(1), which provides
that, subject to certain limitations, “the court may determine the
amount or legality of any tax”); Int’l Cablevision, Inc. v. Sykes,
997 F.2d 998, 1005 (2d Cir. 1993) (interpreting 47 U.S.C. §
553(c)(2), which provides that “the court may” grant injunctive
relief, attorney fees, and damages against someone who has
unlawfully intercepted a cable communications service).
We thus reject Tinicum’s argument that the plain text of
subsection (c) indicates that it functions as a savings clause.

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The reason subsection (b) would provide that a tax not6
falling within an enumerated category is “not necessarily
prohibited” – as opposed to “not prohibited” – is that while
subsection (b) would not itself prohibit such a tax, another AHTA
provision, such as subsection (d), could prohibit it. Therefore, the
most one could glean from reading subsection (b) would be that
such a tax is “not necessarily prohibited.”
13
2.
Tinicum’s second textual argument is more appealing than
its first, but ultimately we reject this one, as well. Tinicum argues
that subsection (b)’s opening clause, by characterizing subsection
(c) as an “[e]xcept[ion]” to the categorical ban, implies that
subsection (c) must save the taxes it describes (namely, those with
subject flights having a ground nexus to the taxing locale). The
DOT concedes this. The DOT argues, however, that the restrictive
text of subsection (c) and the recodification law’s statement that
Congress in § 40116 reenacted the AHTA “without substantive
change” justify reading the statute as if subsection (b)’s opening
clause were deleted.
We disagree with Tinicum’s argument (and believe that the
DOT did not have to make that concession). True, subsection (c)
is an “[e]xcept[ion]” to subsection (b)’s prohibitory regime. That
does not mean, however, that subsection (c) is a savings clause.
Subsection (b)’s “[e]xcept as provided in subsection (c)” language
makes sense when subsection (c) is construed as a necessary
condition.
Suppose subsection (c) did not exist. Subsection (b), then,
would be equivalent to the categorical ban standing alone; it would
prohibit only taxes falling within an enumerated category. In
essence, subsection (b) would provide: a tax falling within an
enumerated category is prohibited, and a tax not falling within an
enumerated category is not necessarily prohibited. Now, consider6
subsection (b) as Congress actually drafted it – with its reference
to subsection (c). It provides: a tax falling within an enumerated
category is prohibited, and a tax not falling within an enumerated

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Our reading has the virtue of preserving each word of the7
statute’s text, which we must do whenever possible. See, e.g.,
United States v. Atl. Research Corp., 551 U.S. 128, 136-37 (2007)
(rejecting interpretation that would render statutory provision a
“dead letter”).
We therefore need not address Tinicum’s preemptive8
counterarguments for why we should not rely on the legislative
history of a rejected amendment to the AHTA or on the language
of the recodification law. We do note, however, that our reading
of subsection (c) is consistent with the recodification law’s
statement that § 40116 does not differ in substance from § 1513.
14
category is not necessarily prohibited, except that a tax on a subject
flight lacking a ground nexus is prohibited even if such tax does
not belong to an enumerated category. The “[e]xcept as provided
by subsection (c)” language meaningfully alters subsection (b)’s
prohibitory regime.
Subsection (c), then, read as a necessary condition, provides
an exception to the operation of subsection (b)’s prohibitory
regime. We thus reject Tinicum’s argument that subsection (b)’s
plain language requires reading subsection (c) as a savings clause.7
* * * * *
We hold that the AHTA’s text unambiguously demonstrates
that subsection (c) is not a savings clause for flight-related taxes.
Under the applicable Chevron framework, we need not go further.8
V.
For the above reasons, we will deny Tinicum’s petition for
review of the DOT’s order declaring Tinicum’s tax invalid.

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