Harris v. Federal Aviation Administration

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 10, 2003 Decided January 13, 2004

No. 02-5304

ROBERT HARRIS, ET AL.,

APPELLANTS

v.

FEDERAL AVIATION ADMINISTRATION AND

JANE F. GARVEY, ADMINISTRATOR OF THE

FEDERAL AVIATION ADMINISTRATION,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 01cv00503)

David M. Glanstein argued the cause for the appellants.

Joel C. Glanstein was on brief.

Edith M. Shine, Assistant United States Attorney, argued

the cause for the appellees. Roscoe C. Howard, Jr., United

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

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States Attorney, and R. Craig Lawrence, Assistant United

States Attorney, were on brief.

Before: HENDERSON, TATEL and ROBERTS, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: In 1981, most

of the air traffic controllers who were members of the Profes-

sional Air Traffic Controllers Organization (PATCO) illegally

went on strike from their jobs with the Federal Aviation

Administration (FAA). See 5 U.S.C. § 7311(3). President

Reagan responded by firing those who refused to return to

work and banned them from future FAA employment.

Twelve years later, in August 1993, the ban was lifted.

Pursuant to that directive, the FAA published Recruitment

Notice 93–01 (Recruitment Notice or Notice). The Notice

provided an avenue for former PATCO controllers to apply to

work at the FAA and specified a GS–9 grade-level, with that

grade level’s corresponding salary range, for any hirees.

Robert Harris and the other 171 appellants are former

PATCO controllers who were hired by the FAA pursuant to

the Recruitment Notice. In 2001, they filed suit under the

Administrative Procedure Act (APA), 5 U.S.C. § 704, claim-

ing that the FAA’s decision to hire them at the GS–9 level

and corresponding salary range – as opposed to their prior,

pre-termination grade-levels and corresponding salary

ranges – was arbitrary and capricious. The district court

dismissed their case for lack of subject matter jurisdiction,

concluding that they had failed to bring their claim within the

six-year statute of limitations set forth in 28 U.S.C. § 2401(a).

In doing so, the district court found that the Recruitment

Notice constituted ‘‘final agency action’’ for the purpose of the

appellants’ APA claim and that their case would have been

ripe for review when the Notice was published in 1993. The

appellants contend that the district court erred on both

grounds. We disagree and affirm.

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I. BACKGROUND

On August 3, 1981, after several months of negotiation and

years of disputes with the FAA, several thousand air traffic

controllers who were members of the PATCO went on strike

from their jobs with the federal government. In response,

President Reagan demanded that they return to work within

48 hours or risk losing their jobs. Over 11,000 controllers

refused to do so, so President Reagan fired them and banned

them from returning to work at the FAA. More than twelve

years later, on August 12, 1993, the lifetime ban was lifted.

Shortly thereafter, the FAA issued the Recruitment Notice.

The Notice formally alerted former PATCO controllers

that they were eligible for ‘‘reinstatement’’ at the FAA and

provided them a specific avenue to apply. J.A. 53. Control-

ler positions, the Notice stated, would be filled as vacancies

occurred and, although the FAA expected to add only a few

controllers from various sources over the next few years,1 by

the Notice it was ‘‘establishing an inventory of applicants who

have reinstatement and transfer eligibility.’’ Id. According

to the Notice, applicants would be initially hired at the GS–9

grade level, with a corresponding salary of between $27,789

and $36,123. Internal FAA documents explained that hiring

would take place at the GS–9 level because the former

PATCO controllers would need modified training to learn new

air traffic control systems; they further explained that a

controller’s salary within that range would be based on his

penultimate salary at the time he was fired. ‘‘Advancement

above [the] GS–9 [grade level],’’ the Notice declared, would

‘‘be based upon successful completion of training and/or certi-

1 The Notice was not the only avenue by which a former PATCO

controller could return to the FAA. Regional FAA offices also

published their own recruitment notices, which established their

own particular salary ranges. Similarly, at least as early as 1985,

former PATCO controllers could apply for employment at certain

Department of Defense (DOD) facilities, proceed through DOD pay

scales, and (after the 1993 directive) transfer to the FAA and retain

their equivalent DOD grade level and corresponding salary. J.A.

25–27, 157.

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fication requirements for the next higher grade and applica-

ble time-in-grade requirements.’’ Id.

The appellants are 172 current and retired former PATCO

controllers who were hired by the FAA between 1995 and

1998 pursuant to the Recruitment Notice.2 In 2001, they

brought suit under the APA ‘‘to challenge as arbitrary and

capricious the FAA’s decision to disregard [their] prior high-

est pay grades and performance steps upon their reemploy-

ment with the FAA from 1995 to 1998.’’ Appellants’ Br. at 3.

They claim that the FAA should have hired them at their

prior, pre-termination grade3 – and at the appropriate accom-

panying salary – and not at the GS–9 level and at a salary

within its range.

In the district court, the FAA moved to dismiss the case on

the grounds that the appellants’ claims were time barred, that

they had failed to exhaust their administrative remedies and

that they had failed to state a claim. Concluding that the

Recruitment Notice constituted the final agency action under

the APA, the court held that the appellants did not meet the

six-year statute of limitations because their claims were not

filed until 2001. The court also rejected the appellants’ claim

that their claims did not become ripe for review until the

FAA hired them beginning in 1995, believing that their APA

claim was ripe for review in 1993.

On appeal, the appellants argue that the district court

erred in two ways. First, they claim that the Recruitment

Notice could not constitute final agency action because the

FAA’s hiring process was incomplete and because the Notice

had no immediate impact on them until they were hired.

Second, they renew their claim that even if the Notice was a

2 As the district court noted, the Notice was undated but stated

that it was ‘‘open’’ for six weeks only – from September 1, 1993 to

October 15, 1993. Id. The appellants do not contest the fact that

they applied for employment at the FAA pursuant to the Notice

during that time frame.

3 At least one of the appellants was at the GS–14 grade level

when he was fired and if hired at that level would have received a

significantly greater salary. J.A. 241.

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final agency action, the APA’s statute of limitations did not,

and could not, begin to run until their claim became ripe for

judicial review, which they contend was not until they were

hired beginning in 1995. The FAA counters that the district

court’s conclusions were correct, but that even if they were

not, this court should affirm the dismissal on other grounds,

including: (1) the appellants failed to show that they were

aggrieved; (2) they had alternative remedies and thus no

cause of action under the APA; (3) they failed to exhaust

their alternative administrative remedies; and (4) they failed

to show that the FAA’s decision to hire former PATCO

controllers at the GS–9 level as opposed to their prior grade

levels was arbitrary or capricious.

II. DISCUSSION

Section 704 of the APA provides for judicial review of ‘‘final

agency action.’’ 5 U.S.C. § 704. Unless another statute

prescribes otherwise, a suit challenging final agency action

pursuant to section 704 must be commenced within six years

after the right of action first accrues. 28 U.S.C. § 2401(a);4

Sendra Corp. v. Magaw, 111 F.3d 162, 165 (D.C. Cir. 1997).

The right of action first accrues on the date of the final

agency action. Id.; see Impro Prods., Inc. v. Block, 722 F.2d

845, 850–51 (D.C. Cir. 1983) (‘‘In this case, where no formal

review procedures existed, the cause of action accrued when

the agency action occurred.’’).

The appellants first contend that the district court erred

because the Recruitment Notice did not constitute final agen-

cy action. The United States Supreme Court explained in

Bennett v. Spear, 520 U.S. 154, 177–78 (1997), that:

[a]s a general matter, two conditions must be satis-

fied for agency action to be ‘‘final’’: First, the action

must mark the ‘‘consummation’’ of the agency’s deci-

sionmaking process, Chicago & Southern Air Lines,

4 ‘‘[E]very civil action commenced against the United States shall

be barred unless the complaint is filed within six years after the

right of action first accrues.’’ 28 U.S.C. § 2401(a).

6

Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113

(1948) – it must not be of a merely tentative or

interlocutory nature. And second, the action must

be one by which ‘‘rights or obligations have been

determined,’’ or from which ‘‘legal consequences will

flow,’’ Port of Boston Marine Terminal Assn. v.

Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71

(1970).

See Domestic Secs., Inc. v. SEC, 333 F.3d 239, 246 (D.C. Cir.

2003). The appellants contend that the Recruitment Notice

fails on both counts. With regard to the first condition, they

make two arguments. First, relying on Fourth Branch As-

socs. (Mechanicville) v. FERC, 253 F.3d 741, 746 (D.C. Cir.

2001), they claim that the Notice manifested only the FAA’s

future intent to hire former PATCO controllers. Second,

they contend that the FAA was still formulating its hiring

process with regard to former PATCO controllers after publi-

cation of the Notice and that the FAA subsequently modified

its policies in 1996 when it allowed former PATCO controllers

who were employed by DOD to transfer to the FAA and

maintain their DOD grade levels.

Neither argument holds water. In Fourth Branch Assocs.,

we rejected the petitioner’s argument that FERC’s decision

to initiate a surrender proceeding – in which FERC explicitly

stated that it had made ‘‘no final decision’’ regarding the

outcome of the proceeding – constituted a final agency action.

253 F.3d at 746. In contrast, while the Notice here qualified

the date, if ever, on which a former PATCO controller might

be hired – stating that ‘‘the FAA expects to fill only a small

number of [controller] positions from a variety of sources

over the next few years,’’ that ‘‘employment opportunities are

limited’’ and that it was therefore ‘‘establishing an inventory

of applicants who have reinstatement and transfer eligibility,’’

J.A. 53 – it stated categorically that, when such hiring oc-

curred pursuant to the Notice, it would be at the GS–9 grade

level and at a corresponding salary.5 That declaration consti-

5Indeed, the Notice explained that ‘‘[a]dvancement above GS–9’’

would be available to applicants – who after all had not served as

controllers for 12 years – ‘‘based upon successful completion of

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tutes an ‘‘unequivocal statement of the agency’s position’’

sufficient to meet the first requisite for final agency action.

Reliable Automatic Sprinkler Co. v. Consumer Prod. Safety

Comm’n, 324 F.3d 726, 734 (D.C. Cir. 2003).

The appellants also claim that, even if the Notice itself was

initially definitive with regard to the grade level and salary of

former PATCO controllers hired pursuant to it, the FAA

modified its hiring policy after the Notice’s publication. We

have previously observed that ‘‘[i]f for any reason the agency

reopens a matter and, after reconsideration, issues a new and

final order, that order is reviewable on its merits, even

though the agency merely reaffirms its original decision.’’

Sendra Corp., 111 F.3d at 167. Here, however, the evidence

to which the appellants point for support does not indicate

that the FAA in any way altered or reconsidered its decision

regarding the grade and salary of those former PATCO

controllers hired pursuant to the Recruitment Notice. FAA

Order 3300.30, which issued on December 22, 1993, makes

clear that any former PATCO controller applying pursuant to

the Notice would not be hired at the grade level he held

before the strike; rather it confirms the Notice by stating

that such hiree would initially be paid at the GS–9 grade level

at a salary corresponding as closely as possible to his penulti-

mate, pre-termination salary. J.A. 60. Furthermore, the

fact that some former PATCO controllers who worked as

controllers at DOD in 1996 and who subsequently transferred

to the FAA (but not pursuant to the Notice) were able to

maintain their then-current grade level does not mean that

the FAA altered the Notice’s offer to hire at the GS–9 level

former PATCO controllers who required retraining. Indeed,

that the FAA continued to hire the appellants through 1998 at

the GS–9 level pursuant to the Notice manifests that the FAA

continued to enforce it as written.

The appellants next claim that the district court erred in

concluding the Notice constituted final agency action because

it had no ‘‘immediate impact or direct legal consequences’’ on

training and/or certification requirements for the next higher

grade.’’ Id.

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any former controllers until they were in fact hired by the

FAA. Appellants’ Br. at 12. The test for finality, however, is

not so narrow – it is met if ‘‘the action [is] one by which rights

or obligations have been determined, or from which legal

consequences will flow.’’ Bennett, 520 U.S. at 178 (quotations

and citations omitted); see Reliable Automatic Sprinkler, 324

F.3d at 731 (‘‘Agency action is considered final to the extent it

imposes an obligation, denies a right, or fixes some legal

relationship.’’ (citing Role Models Am., Inc. v. White, 317

F.3d 327, 331–32 (D.C. Cir. 2003))). As the district court

observed, the Notice constituted the FAA’s formal offer of

employment to hire former PATCO controllers at the GS–9

level, an offer which the appellants accepted pursuant to its

terms by applying during the 1993 six-week period. The

hiring of the appellants from 1995 to 1998 at the GS–9 level

simply implemented the FAA’s decision which was made in

1993 and spelled out in the Notice. See Impro Prods., 722

F.2d at 850 (agency’s renewal of earlier decision – periodic

redistribution of reprints of articles allegedly containing false

information – did not restart statute of limitations).

The appellants alternatively contend that, even if the No-

tice constituted final agency action, the district court erred in

dismissing their law suit because the six-year statute of

limitations did not begin to run until after they were hired.

Had they brought their claim in 1993, the appellants contend,

the district court would have dismissed their case for lack of

ripeness. We have declined previously to consider an after-

the-fact invocation of the ripeness doctrine to defeat a statute

of limitations, although not in the context of an APA claim.

See, e.g., Eagle–Picher Indus., Inc. v. EPA, 759 F.2d 905,

912–14 (D.C. Cir. 1985) (CERCLA claim brought too late to

meet ninety-day statute of limitations and petitioner’s ripe-

ness argument rejected). Nevertheless, we believe that the

appellants’ claim was ripe for review in 1993.

The ripeness inquiry requires a court to look both to ‘‘the

fitness of the issues for judicial review and the hardship to

the parties of withholding court consideration.’’ Abbott Labs.

v. Gardner, 387 U.S. 136, 149 (1967), overruled on other

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grounds, Califano v. Sanders, 430 U.S. 99, 105 (1977); see

Sprint Corp. v. FCC, 331 F.3d 952, 956–58 (D.C. Cir. 2003).

‘‘In determining the fitness of an issue for judicial review we

look to see whether the issue is purely legal, whether consid-

eration of the issue would benefit from a more concrete

setting, and whether the agency’s action is sufficiently final.’’

Clean Air Implementation Project v. EPA, 150 F.3d 1200,

1204 (D.C. Cir.1998) (internal quotation omitted). We have

already determined that the Recruitment Notice constituted

final agency action; nevertheless the appellants argue that

their case was not ripe for judicial review until they were

hired because the FAA’s decision was not sufficiently crystal-

lized and because they had not yet suffered any ‘‘direct

hardship.’’ Appellants’ Br. at 19. As we explained in Sprint

Corp., however, ‘‘the question of whether an agency decision

is arbitrary and capricious is a purely legal question,’’ and

‘‘[f]itness TTT is more likely to be found where ‘the issue

tendered is a purely legal one.’ ’’ 331 F.3d at 956 (quoting

Abbott Labs., 387 U.S. at 149, citing Fox Television Stations,

Inc. v. FCC, 280 F.3d 1027, 1039 (D.C. Cir.), opinion modified

on reh’g on other grounds, 293 F.3d 537 (D.C. Cir. 2002)); see

Barrick Goldstrike Mines Inc. v. Browner, 215 F.3d 45, 49

(D.C. Cir. 2000) (case ripe for judicial review where ‘‘ques-

tions presented are purely legal’’ and ‘‘[n]othing TTT would

bring the issues into greater focus or assist in determining

them’’). The ‘‘prospect’’ of hardship is sufficient to make a

claim fit for judicial review. Id. Moreover, the focus of the

second prong of the ripeness inquiry – ‘‘hardship’’ to the

parties from withholding review – is not whether they have

suffered any ‘‘direct hardship,’’ but rather whether postpon-

ing judicial review would impose an undue burden on them or

would benefit the court. AT&T v. FCC, 349 F.3d 692, 700,

702 (D.C. Cir. 2003) (explaining that ‘‘ ‘hardship prong’ ’’

considers ‘‘potential hardship of delay on the [petitioner]’’

only if court finds important agency interests and rejecting

petitioner’s challenge as unripe because ‘‘both the agency and

the court would benefit from postponing review’’ and petition-

er failed to show that postponing review would cause it

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hardship); see Ohio Forestry Ass’n v. Sierra Club, 523 U.S.

726, 733 (1998) (ripeness vel non weighs ‘‘(1) whether delayed

review would cause hardship to the plaintiffs; (2) whether

judicial intervention would inappropriately interfere with fur-

ther administrative action; and (3) whether the courts would

benefit from further factual development of the issues pre-

sented’’). Accordingly, because the Notice sufficiently affect-

ed their legal rights as well as the obligations of the FAA and

because there was no reason to postpone judicial review, the

appellants’ claim was ripe in 1993.

Our recent decision in Norwest Bank Minnesota National

Association v. FDIC, 312 F.3d 447 (D.C. Cir. 2002), also

supports affirmance. In Norwest, we considered whether the

FDIC’s 1992 interpretation applying a statutory amendment

to the calculation of banking insurance premiums triggered 12

U.S.C. 1817(g)’s five-year statute of limitations. See id. at

449–50. Rejecting the bank’s claim that it could not have

challenged the agency’s interpretation until 1995, at which

time the FDIC’s interpretation imposed a financial burden on

the bank itself, we concluded that ‘‘it has long been settled

that statutes of limitations begin running when the wrong has

been committed, even if at the time no more than nominal

damages may be proved, and no more recovered.’’ Id. at 452

(emphasis added) (internal quotation omitted).6 Just as the

FDIC’s 1992 interpretation constituted final agency action for

the purpose of the bank’s challenge – even if the FDIC’s

interpretation did not financially harm the bank until some

years later – so too did the 1993 Recruitment Notice, which

likewise determined the appellants’ future salaries – notwith-

standing their pocketbooks did not feel it until years later–

constitute final agency action for the purpose of the appel-

lants’ APA claim here. Norwest, 312 F.3d at 451–52.

6 We noted that ‘‘[o]ne of the policies underlying the statute of

limitations is repose[,]’’ concluding that if the statute of limitations

did not begin to run until FDIC’s interpretation caused financial

harm to Norwest, ‘‘FDIC’s books would never close.’’ Id. at 452

(citing 3M Co. v. Browner, 17 F.3d 1453, 1457 (D.C. Cir. 1994)).

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For the foregoing reasons, the judgment of the district

court is affirmed.7

So ordered.

7 The district court dismissed the suit pursuant to Fed. R. Civ. P.

12(b)(1). We have previously declared that section 2401(a), ‘‘[u]n-

like an ordinary statute of limitations, TTT is a jurisdictional condi-

tion attached to the government’s waiver of sovereign immunity,’’

Spannaus v. United States Dep’t of Justice, 824 F.2d 52, 55 (D.C.

Cir. 1987). Nevertheless, after the Supreme Court in Irwin v.

Department of Veteran Affairs, 498 U.S. 89, 95–96 (1990), rejected

the Fifth Circuit’s jurisdictional reading of Title VII’s similar filing

deadline and instead held that the ‘‘same rebuttable presumption of

equitable tolling applicable to suits against private defendants

should also apply to suits against the United States,’’ we recently

expressed doubt about the jurisdictional nature of an analogous

statute of limitations. See Chung v. United States Dep’t of Justice,

333 F.3d 273, 277 (D.C. Cir. 2003) (rejecting jurisdictional nature of

Privacy Act statute of limitations in light of Irwin); see also Zipes

v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (‘‘filing a

timely charge of discrimination TTT is not a jurisdictional prerequi-

site to suit in federal court, but a requirement that, like a statute of

limitations, is subject to waiver, estoppel, and equitable tolling’’);

Leavell v. Kieffer, 189 F.3d 492, 494–95 (7th Cir. 1999) (statute of

limitations not jurisdictional but instead affirmative defense). The

parties have not questioned the district court’s dismissal pursuant

to 12(b)(1), and, given our disposition, we need not determine

whether the dismissal should have been pursuant to 12(b)(1) or

12(b)(6).