Tulsa Airports Improvements Trust v. United States

In the United States Court of Federal Claims

No. 13-906C

(Filed: February 10, 2015)

********************************** ) Dispute over costs allowable under a grant

) for a noise abatement program at an

TULSA AIRPORTS ) airport; displacement of jurisdiction

IMPROVEMENTS TRUST, ) provided by the Tucker Act because of

) exclusive jurisdiction available under

Plaintiff, ) either 49 U.S.C. § 47111, or alternatively,

) 49 U.S.C. § 46110; transfer to the United

v. ) States Court of Appeals for the Tenth

) Circuit; 28 U.S.C. § 1631

UNITED STATES, )

)

Defendant. )

)

**********************************

Andrea Stailey Hoskins, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Tulsa,

Oklahoma, for plaintiff. With her on the briefs were John Hickey, Hall, Estill, Hardwick, Gable,

Golden & Nelson, P.C., Tulsa, Oklahoma, and Steven K. Metcalf, McDonald, McCann, Metcalf

& Carwile, L.L.P., Tulsa, Oklahoma.

Meen Geu Oh, Trial Attorney, Commercial Litigation Branch, Civil Division, United

States Department of Justice, Washington, D.C., for defendant. With him on the briefs were

Stuart F. Delery, Assistant Attorney General, Civil Division, Robert E. Kirschman, Jr., Director,

and Kirk T. Manhardt, Assistant Director, Commercial Litigation Branch, Civil Division, United

States Department of Justice, Washington, D.C.

OPINION AND ORDER

LETTOW, Judge.

Plaintiff, Tulsa Airports Improvement Trust (“Tulsa Airports”) brought this action on

November 14, 2013, invoking jurisdiction under the Tucker Act, 28 U.S.C. § 1491(a)(1), and

seeking reimbursement of payments made to Cinnabar Service Company (“Cinnabar”), a private

contracting firm, for noise abatement work. The pertinent payments compensated Cinnabar for

delay costs associated with work completed in furtherance of a Noise Abatement Program

funded under grants from the Federal Aviation Administration (“FAA”). Am. Compl., ECF No.

17-1. Tulsa Airports alleges that the FAA wrongfully determined that the payments were “‘not

allowable grant costs’” eligible for funding under two grants for noise abatement, forcing Tulsa

Airports to bear the costs. Am. Compl. ¶ 37.

The government filed a motion to dismiss pursuant to Rule 12(b)(1) of the Rules of the

Court of Federal Claims (“RCFC”), contending that this court lacks jurisdiction over the dispute

because either 49 U.S.C. § 46110, or alternatively, 49 U.S.C. § 47111, vest exclusive jurisdiction

over Tulsa Airports’s claims in one of two United States Courts of Appeals. Def.’s Mot. to

Dismiss Pl.’s First Amended Compl. (“Def.’s Mot.”) at 1, 10, ECF No. 24 at 1. In addition, the

government avers that plaintiff’s claims are time-barred under 28 U.S.C. § 2501. Id. Finally, the

government requests that the court dismiss the complaint for failure to state a claim upon which

relief can be granted pursuant to RCFC 12(b)(6) on the grounds that Tulsa Airports has failed to

plead damages. Id.

A hearing on this motion was held on January 15, 2015. The motion is fully briefed and

accordingly is ready for disposition. For the reasons stated, the court denies the motion to

dismiss and transfers the case to the United States Court of Appeals for the Tenth Circuit.

BACKGROUND1

Beginning in the mid-1990s, Tulsa Airports administered and executed a Noise

Abatement Program in the vicinity of the Tulsa International Airport (“the Airport”) pursuant to

14 C.F.R. Part 150. Am. Compl. ¶ 5. To carry out the program, plaintiff regularly received

federally funded grants from the FAA pursuant to the Airport and Airway Improvement Act of

1982, Pub. L. No. 97-248, 96 Stat. 671 (in relevant part, as added, recodified, and amended, at 49

U.S.C. §§ 47101-47142). Def.’s Mot. at 2-3; Am. Compl. ¶ 9. The grants were intended to

reimburse 80 to 90 percent of eligible Noise Abatement Program costs; remaining funds were to

be provided from the Airport’s own resources. Am. Compl. ¶ 9. The Noise Abatement Program

lasted for over ten years and incorporated two phases. Am. Compl. ¶¶ 6-8. In the first phase,

Tulsa Airports purchased outright 500 severely-impacted homes near the Airport. Am. Comp.

¶ 7. In the second phase, plaintiff targeted 1,700 homes in zones that were less severely affected

by noise and offered homeowners in those locations the opportunity to participate in a sound

attenuation program, including improvements such as adding insulation to make existing homes

more noise resistant. Am. Compl. at ¶ 8. Tulsa Airports completed the first phase itself. Id. To

carry out the second phase, Tulsa Airports sought assistance, and in September 1999, with the

approval of the FAA, issued a “Request for Proposals for Noise Mitigation Professional

Services.” Am. Compl. ¶ 10. Cinnabar was the successful bidder. Am. Compl. ¶ 11. On April

13, 2000, plaintiff and Cinnabar executed a written Contract for Professional Services,

stipulating that Cinnabar would perform some direct services associated with the project and

subcontract specialized work to others. Am. Compl. ¶¶ 12-13.

The pace of the noise abatement project was driven by Tulsa Airports’s receipt of FAA

grants. Am. Compl. ¶ 18. To obtain grants, Tulsa Airports would submit applications to the

FAA, and the FAA would respond with a grant agreement which in turn would be “accepted” by

plaintiff. Am. Compl. ¶ 15. Tulsa Airports received reimbursement from the FAA via automatic

deposit only after submitting a request based on costs actually incurred by the contractors

1

The recitation of background does not constitute findings of fact by the court and is

provided solely to establish a context for deciding the currently pending motion. Unless

otherwise noted, however, the circumstances appear to be undisputed.

2

carrying out the program. Id. The present action arises out of two specific grants: Grant No. 3-

40-0099-47-2003 (“Grant 47”) and Grant No. 3-40-0099-50-2004 (“Grant 50”). Am. Compl.

¶ 19. Grant 47 provided $6,000,000 in federal funds for “airport development or noise program

implementation” and required the FAA to pay Tulsa Airports 90 percent of “‘allowable project

costs.’” Am. Compl. ¶¶ 20-21.2 Grant 50 provided $6,298,000 in federal funds for “airport

development or noise program implementation” and required the FAA to pay plaintiff 95 percent

of “‘allowable project costs.’” Am. Compl. ¶¶ 22-23.3 Both Grant 47 and Grant 50 contained

provisions allowing the FAA to adjust payments upward or downward at any time up to the

closing of the grants and provided that “[f]inal determination of the United States’ share [of

allowable project costs] will be based upon the final audit of the total amount of allowable

project costs and settlement will be made for any upward or downward adjustments to the

[f]ederal share of costs.” Am. Compl. ¶ 25. During the course of the project, it was not an

uncommon practice for the parties to seek adjustments while a grant was still open or after a

grant was closed. Am. Compl. ¶ 26.4

The parties’ dispute first surfaced in December 2002, when Cinnabar informed Tulsa

Airports that total billings for the project exceeded grant funding. Am. Compl. ¶ 29. Believing

that a further FAA grant would be issued in the near future, Tulsa Airports on December 10,

2002 agreed to allow Cinnabar to advance necessary funds and complete the 70 homes under

construction at the time. Am. Compl. ¶ 30. Meanwhile, work not yet commenced was put on

hold pending approval of future FAA grants, and all contractors, subcontractors, and consultants

were placed on “stand by” status. Am. Compl. ¶¶ 30-31. Eventually, the stand-by period

stretched over 90 days and some subcontractors demanded contract increases or terminated their

contracts. Am. Compl. ¶ 32.5 As a direct result, Cinnabar made payments to subcontractors

amounting to $705,913.40. Am. Compl. ¶ 34. Later, Tulsa Airports sought and received

reimbursement from the FAA for the payments. Am. Compl. ¶ 35. However, on July 6, 2006,

the FAA demanded that plaintiff repay $252,921.37 on the grounds that “‘contract

delay/escalation costs’” were “‘not allowable for federal participation.’” Am. Compl. ¶ 36.

Similarly, on August 11, 2008, the FAA demanded repayment of $403,653.00 on the grounds

that “‘labor costs associated with work suspensions and cost escalation in performance’” were

2

The FAA extended the offer to enter into Grant 47 to the City of Tulsa and Tulsa

Airports on July 21, 2003, and the offer was accepted and executed by Tulsa Airports and the

City of Tulsa on July 25, 2003 and July 28, 2003, respectively. Am. Compl. ¶ 20.

3

The FAA extended the offer to enter into Grant 50 on April 8, 2004, and the offer was

accepted and executed by Tulsa Airports on April 20, 2004 and by the City of Tulsa on April 27,

2004. Am. Compl. ¶ 22.

4

See Hr’g Tr. 45:13-23 (Jan. 15, 2015). Further citations to the transcript of the hearing

held on January 15, 2015 will omit a reference to the date.

5

The stand-by period ended on July 25, 2003, when Tulsa Airports officially accepted a

grant approved for an additional $6 million. Am. Compl. ¶ 33; see also Def.’s Mot. at 3.

3

“‘not allowable grant costs.’” Am. Compl. ¶ 37. Tulsa Airports reimbursed the FAA for these

amounts.6

On January 23, 2012, Tulsa Airports submitted a claim to the regional FAA office in Fort

Worth, Texas, requesting that the FAA reconsider its prior demand that Tulsa Airports repay

approximately $656,000 under Grants 47 and 50 and instead pay Tulsa Airports that amount as

eligible costs associated with actual work done on the Noise Abatement Program. Am. Compl. ¶

38. On May 8, 2012, the FAA stated that it declined to reconsider the eligibility of the payments

under either Grant 47 or 50 until after Tulsa Airports “completed all actions necessary to draw

down all remaining funds under Grant 47.” Am. Compl. ¶ 38; Pl’s Resp. to Def.’s Mot. To

Dismiss Pl.’s First Am. Compl. (“Pl.’s Opp’n”) at 3-4, ECF No. 27.7 In the following months,

Tulsa Airports submitted invoices to the FAA to draw remaining Grant 47 funds, and ultimately

the FAA issued notice that Grant 47 was closed as of September 26, 2012. Am. Compl. ¶ 39.

On October 4, 2012, Tulsa Airports resubmitted its request for approval of the payments, and on

October 24, 2012, the FAA responded with a letter rejecting plaintiff’s request for

reconsideration and noting that additional reviews of the Grants “would not be considered an

efficient use of resources.” Am. Compl. ¶ 40; Pl.’s Opp’n at Ex. 1. On December 6, 2012, Tulsa

Airports submitted a claim to the FAA’s headquarters in Washington, D.C. reiterating its request

for approval of the payments as eligible costs associated with actual work done on the Noise

Abatement Program. Am. Compl. ¶ 41. The FAA’s Associate Administrator for Airports

subsequently issued a letter on December 31, 2012, declining reimbursement. Am. Compl. ¶ 42;

Pl.’s Opp’n at Ex. 2.

ANALYSIS

I. The Government’s Motion to Dismiss

A. Subject Matter Jurisdiction

Before proceeding to the merits, the court must first “satisfy itself that it has jurisdiction

to hear and decide a case.” Hardie v. United States, 367 F.3d 1288, 1290 (Fed. Cir. 2004)

(quoting PIN/NIP, Inc. v. Platte Chem. Co., 304 F.3d 1235, 1241 (Fed. Cir. 2002)) (internal

quotation marks omitted). When addressing a motion to dismiss under Rule 12(b)(1) for lack of

subject matter jurisdiction, the court will “normally consider the facts alleged in the complaint to

be true and correct.” Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir.

1988) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). It is the plaintiff’s burden to allege

“in his pleading the facts essential to show [subject matter] jurisdiction” by a preponderance of

the evidence. McNutt v. General Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936);

6

Tulsa Airports repaid $252,921.37 in contract delay and escalation costs by check, Am.

Compl. ¶ 36, and $403,653.00 in “labor costs associated with work suspensions and cost

escalation in performance” was withheld by the FAA from Grant 50, Am. Compl. ¶ 37.

7

The FAA’s statement was contained in a letter sent from the FAA to then-Congressman

John Sullivan after Cinnabar sought Mr. Sullivan’s aid and he contacted the FAA on Cinnabar’s

behalf. Am. Compl. ¶ 38.

4

see also Thomson Gaskill, 315 U.S. 442, 446 (1942); Taylor v. United States, 303 F.3d 1357,

1359 (Fed. Cir. 2002); Reynolds, 846 F.2d at 748.

Tulsa Airports premises this court’s jurisdiction on the Tucker Act, 28 U.S.C.

§ 1491(a)(1), averring that Grants 47 and 50 constituted contracts between it and the FAA, which

the FAA breached by failing to reimburse Tulsa Airports for allowable project costs. Am.

Compl. ¶ 45. The Tucker Act grants this court “jurisdiction to render judgment upon any claim

against the United States founded either upon the Constitution, or any Act of Congress or any

regulation of an executive department, or upon any express or implied contract with the United

States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C.

§ 1491(a)(1). The Act waives sovereign immunity, allowing a claimant to sue the United States

for monetary damages. United States v. Mitchell, 463 U.S. 206, 212 (1983). “[U]nless the

Tucker Act has been displaced or modified by explicit federal statutory law or treaty,” the Act

grants this court general jurisdiction over claims arising under contracts with the federal

government. Boston Edison Co. v. United States, 64 Fed. Cl. 167, 175 (2005). “The [displacing]

exceptions [to Tucker Act jurisdiction] are few and far between.” Id. (citing as an example a

provision of the Pacific Northwest Electric Power Planning and Conservation Act, 16 U.S.C.

§ 839f(e)(5), granting exclusive jurisdiction to a regional circuit, the U.S. Court of Appeals for

the Ninth Circuit, to review actions of the Bonneville Power Authority that would otherwise

overlap with this court’s jurisdiction under the Tucker Act); see also United States v. Bormes, __

U.S. __, __, 133 S. Ct. 12, 18 (2012) (stating that in a jurisdictional context, as elsewhere, “a

‘precisely drawn, detailed statute pre-empts more general remedies’”) (quoting Hinck v. United

States, 550 U.S. 501, 506 (2007) (in turn quoting EC Term of Years Trust v. United States, 550

U.S. 429, 434 (2007))).

The government challenges this court’s subject matter jurisdiction, arguing that either 49

U.S.C. § 46110, or, in the alternative, 49 U.S.C. § 47111, displace the court’s jurisdiction under

the Tucker Act by expressly granting exclusive jurisdiction over Tulsa Airports’s claims to one

or the other of two United States Courts of Appeals. Def.’s Mot. at 7-11.

Section 46110 is a general jurisdictional statute providing for judicial review of actions

taken by the Department of Transportation, and states:

[A] person disclosing a substantial interest in an order issued by the Secretary of

Transportation . . . 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. . . . When a petition is filed . . . the court has exclusive jurisdiction to affirm,

amend, modify, or set aside any part of the order.

49 U.S.C. § 46110 (a)-(c) (emphasis added).

5

As a secondary alternative, the government cites 49 U.S.C. § 47111, a specific grant of

jurisdiction for review of disputes over grant funds, as also displacing jurisdiction under the

Tucker Act. Def.’s Mot. at 10 n.2. Section 47111(d) provides, in pertinent part:

A person adversely affected by an order of the Secretary [of Transportation]

withholding a payment [under a grant agreement] may apply for review of the

order by filing a petition 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 project is located. The petition must be filed not later than 60 days

after the order is served on the petitioner.

49 U.S.C. § 47111(d)(3) (emphasis added).

In a different factual context, another judge of this court has concluded that 49 U.S.C.

§ 46110 provides a design for exclusive jurisdiction and, where applicable, displaces jurisdiction

under the Tucker Act. See, e.g., Pucciariello v. United States, 116 Fed. Cl. 390, 408 (2014)

(finding “the specific and exclusive jurisdictional authority granted to the federal courts of

appeals in 49 U.S.C. § 46110 controls and takes precedence over the general and non-exclusive

jurisdictional authority afforded by the Tucker Act.”). In like vein, a number of courts of appeals

have reached the same conclusion respecting the exclusive nature of jurisdiction under 49 U.S.C.

§ 46110. See Bitz v. Napolitano, 700 F.3d 733, 740 (4th Cir. 2012) (“Congress clearly expressed

its intention that any legal challenge to a § 46110 order, including a proceeding like the one at

bar, be brought in the first instance in a court of appeals.”); Jones v. United States, 625 F.3d 827,

829 (5th Cir. 2010) (“Section 46110(a) of the Federal Aviation Act vests the exclusive

jurisdiction over challenges to FAA orders in certain United States Courts of Appeals.”);

Americopters, LLC v. Federal Aviation Admin., 441 F.3d 726, 732 (9th Cir. 2006) (“We have

direct and exclusive jurisdiction over the review of FAA final orders under 49 U.S.C. § 46110.”);

see also St. John’s United Church of Christ v. City of Chi., 502 F.3d 616, 628 (7th Cir. 2007)

(stating that “exclusive jurisdiction” over disputes concerning airport development provisions

rests in the court of appeals).

In the government’s view, either Section 46110(a) or Section 47111(d) apply because the

pending dispute involves a challenge to a “FAA order.” Def.’s Mot. at 7-11. The government

contends that FAA actions constitute orders under these jurisdictional provisions “so long as they

determine ‘rights and obligations,’ or have ‘legal consequences.’” Id. at 8 (citing City of Dania

Beach, Fla. v. Federal Aviation Admin., 485 F.3d 1181, 1184 (D.C. Cir. 2007)). Accordingly,

the government avers that the letter issued on December 31, 2012 by the FAA’s Associate

Administrator for Airports declining to find “‘that there are potentially eligible costs that have

not been reimbursed,’” id. (quoting Am. Compl. ¶ 42), qualifies as an order because it

determined Tulsa Airports’s right to reimbursement and had legal consequences, evidenced by

plaintiff’s subsequent filing of a breach of contract claim, id. at 9.

Tulsa Airports resists the government’s characterization of the Assistant Administrator’s

letter of December 31 as an order by positing that “when the FAA failed to make the

reimbursements at issue, it was acting[] not in a rulemaking, rule enforcement, or adjudicative

capacity, but in its own interest as a party to a contract.” Pl.’s Opp’n at 1, 4. Tulsa Airports

6

emphasizes that the FAA did not follow the statutorily prescribed procedural requirements for

withholding payments. In that respect, Paragraph 47111(d)(1) provides that:

The Secretary may withhold a payment under a grant agreement under

this subchapter for more than 180 days after the payment is due only if

the Secretary —

(A) notifies the sponsor and provides an opportunity for a hearing; and

(B) finds that the sponsor has violated the agreement.

49 U.S.C. § 47111(d)(1). The government does not dispute that “[t]here was no hearing,

rulemaking procedure, or other administrative process involved in the FAA’s decision.” Pl.’s

Opp’n at 4; see Def.’s Reply in Support of its Mot. to Dismiss Pl.’s Am. Compl. (“Def.’s

Reply”) at 3, ECF No. 30 (“T[ulsa Airports’s] argument that there was no formal adjudicatory

process or that it was not granted a hearing is immaterial.”). Further to the point, Tulsa Airports

notes it submitted voluminous materials to the FAA, and the FAA responded within a

particularly short time, see Hr’g Tr. 42:7-14; see also Pl.’s Opp’n at 15, suggesting that FAA

undertook a minimal evaluation of pertinent materials. Given the FAA’s failure to comply with

statutory procedural requirements, Tulsa Airports argues that the FAA Associate Administrator’s

action of December 31, 2012 was not a final order subject to the judicial review provisions of

either Section 46110 or 47111. Pl.’s Opp’n at 4. Tulsa Airports bolsters this argument by

pointing to statements in the letter of December 31 that invite Tulsa Airports to “resubmit” its

request or to provide “additional information,” implying the possibility of future adjustments in

line with those made throughout the completion of the project. Pl.’s Opp’n at 4 (quoting letter of

December 31). Moreover, Tulsa Airports notes that grant agreements generally qualify as

contracts enforceable in this court. Pl.’s Opp’n at 7 (citing City of Manassas Park v. United

States, 633 F.2d 181, 184 (Ct. Cl. 1980)). Therefore, rather than seeking “review” of an FAA

order, Tulsa Airports contends that it was remitted to a contractual remedy and consequently

framed its complaint as a standard breach-of-contract claim for already-incurred monetary

damages, which it submits properly falls within the court’s jurisdiction under the Tucker Act. Id.

at 5-10.8

Tulsa Airports is correct that FAA failed to follow the requisite procedures specified in

Subsection 47111 for withholding a payment under a grant agreement. The government

8

For this position, Tulsa Airports relies on cases including Mike’s Contracting, LLC v.

United States, 92 Fed. Cl. 302 (2010), and Americopters, LLC v. United States, 95 Fed. Cl. 224

(2010). See Pl.’s Supplemental Brief in Opp’n to Def.’s Mot. to Dismiss Pl’s. Compl. at 3-4,

ECF No. 20. Those cases are distinguishable from the circumstances at issue here because the

relevant claims in those actions did not amount to review of an order or a collateral attack of an

agency order. See Mike’s Contracting, 92 Fed. Cl. at 304 (raising tort and Fifth Amendment

claims resulting from the FAA’s suspension of an airworthiness certificate for a helicopter);

Americopters, LLC v. Federal Aviation Admin., 441 F.3d 726, 738 (9th Cir. 2006) (concluding

that § 46110 did not apply in a case where plaintiffs sought just compensation under the Fifth

Amendment for FAA employee actions requiring company to cease purportedly unsafe

operations because “there is no pending FAA order and because there were no previous agency

determinations on the merits.”).

7

responds by asserting that this failure does not make a difference to the jurisdictional posture of

this case because the decision of the FAA’s Associate Administrator on December 31, 2012 was

still an action that determined Tulsa Airports’s rights and had legal consequences. See Def.’s

Reply at 3 (citing City of Dania Beach, 485 F.3d at 1184). In this regard, the government relies

exclusively on precedents applying Section 46110, emphasizing that, as a judge of this court

commented, “[t]he term ‘order,’ for purposes of 49 U.S.C. § 46110, has been given ‘expansive

construction’ by the United States courts of appeals.” Pucciariello, 116 Fed. Cl. at 407 (quoting

Ligon v. LaHood, 614 F.3d 150, 154 (5th Cir. 2010)).

Section 46110 is contained within 49 U.S.C. Subpart IV, entitled “Enforcement and

Penalties,” and more specifically within Chapter 461, entitled “Investigations and Proceedings.”

As such Section 46110 relates to and governs judicial review respecting a broad spectrum of

actions by the Secretary of Transportation, the Under Secretary of Transportation for Security,

and the Administrator of the FAA. See 49 U.S.C. § 46110(a). Not surprisingly, so long as an

action by these officials has indicia of finality, courts of appeals have undertaken review of the

action. Under Section 46110, no specific procedural steps are statutorily required to be taken by

the Secretary or other officials of the Department of Transportation in acting on matters that are

subject to review under that Section. See Hr’g Tr. 35:24-25 (government counsel’s observation

that “there’s no regulatory regime in place for [a particular proceeding to occur prior to] the

review process [under Section 46110]”). In effect, a broad and varied spectrum of actions by the

Secretary and other officials are encompassed within the ambit of Section 46110, many if not

most of which would fall into the category of “informal adjudication” as described in the

germinative article by David P. Currie & Frank I. Goodman, Judicial Review of Federal

Administrative Action: Quest for the Optimum Forum, 75 Colum. L. Rev. 1, 54-55 (1975)

(referring to “[t]his amorphous and miscellaneous category” of administrative action as

“‘constituting the vast bulk of administrative adjudication’” (quoting Attorney General’s

Committee on Administrative Procedure, Final Rep. 35 (1951)); see, e.g., Harrison v. PPG

Indus., Inc., 446 U.S. 578, 593 (1980) (reviewing a letter that followed an exchange of letters).

Examples of matters considered by the courts of appeals to be within the sweep of

Section 46110 include the orders at issue in Ruskai v. Pistole, __ F.3d __, 2014 WL 7272770 (1st

Cir. Dec. 23, 2014) (reviewing the Transportation Security Administration's refusal to restrict use

of pat-down searches at airport security checkpoints to accommodate individuals with metallic

joint replacements); Burdue v. Federal Aviation Admin., __ F.3d __, 2014 WL 7270532 (6th Cir.

Dec. 23, 2014) (considering an order revoking an aircraft inspector’s certification as an

Airworthiness Representative–Maintenance); SecurityPoint Holdings, Inc. v. Transportation Sec.

Admin., 769 F.3d 1184, 1186 (D.C. Cir. 2014) (concluding that a letter from chief counsel of the

Transportation Security Administration rejecting an advertising company’s objections to changes

to program involving advertisements at airport security checkpoints was a reviewable “order”);

GoJet Airlines, LLC v. Federal Aviation Admin., 743 F.3d 1168, 1170 (8th Cir. 2014)

(considering FAA Acting Administrator’s ruling that plaintiff violated FAA regulations by

failing to make a logbook entry and remove a gear pin); BMI Salvage Corp. v. Federal Aviation

Admin., 488 Fed. Appx. 341, 345 (11th Cir. 2012) (reviewing FAA’s final decision dismissing a

complaint alleging unjust discrimination by a public-use, general aviation airport); Dickson v.

Federal Aviation Admin., 480 Fed. Appx. 263, 266 (5th Cir. 2012) (considering a letter to

commercial pilot denying his application for an unrestricted first-class medical certificate);

8

Avera v. Airline Pilots Ass’n Int’l, 436 Fed. Appx. 969, 973 (11th Cir. 2011) (involving the “Age

60 Rule” providing that no pilot may serve as a pilot in operations of a commercial aircraft after

reaching 60th birthday). Similarly, the decision by a judge of this court in Pucciariello held that

a court of appeals had exclusive jurisdiction over a claim by a former employee of the FAA who

had been appointed a designated airworthiness representative of the FAA but then had been

dismissed from that position. See 116 Fed. Cl. at 409-10, 416 (ruling that jurisdiction under the

Tucker Act had been supplanted by 49 U.S.C. § 46110).

By contrast the jurisdictional scope of Section 47111 is much more limited, being

confined to payments under project grant agreements. Also by contrast, Section 47111 sets out

rudimentary procedural notice-and-hearing steps that are to be followed by the Secretary or his

delegate in withholding payments, as noted supra, at 7.

Ordinarily, “specific schemes trump general statutes.” Kannikal v. Attorney Gen. United

States of America, __ F.3d __, __, 2015 WL 252437, at *9 (3d Cir. Jan. 20, 2015). That is

particularly true for jurisdictional provisions. See Bormes, __ U.S. at __, 133 S. Ct. at 18.

Indeed, “the language of jurisdictional statutes is to be parsed with precision and fidelity to their

express terms.” Boston Edison, 64 Fed. Cl. at 176 (citing Stone v. Immigration & Naturalization

Serv., 514 U.S. 386, 405 (1985) (jurisdictional statutes “must be construed with strict fidelity to

their terms”) (in turn citing Cheng Fan Kwok v. Immigration & Naturalization Serv., 392 U.S.

206, 212 (1968))).

The government did not, however, follow those precepts in presenting and arguing its

motion to dismiss because it relied chiefly on the general jurisdictional statute, Section 46110,

and only mentioned the specific statute, Section 47111, in a footnote. See Def.’s Mot. at 10 n.2.

The government’s reasoning in not starting with the premise that Section 47111 should apply to

displace jurisdiction under the Tucker Act was that no precedent could be found relating to that

statute:

THE COURT: It seemed to the Court in looking at those two

statutes that it was more likely that 47111(d)(3) applied in place of 46110

because 47111(d)(3) was more specific.

MR. OH: Your Honor, I think that argument could be made. The

fact of the matter is there’s very little case law. In fact, I didn’t find a

single case concerning 47111. So, it’s hard to argue based on the case law

in the matter. But I do think that 47111 is instructive for our purposes

because that statute expressly states that . . . the [g]overnment[’s] refusal

to reimburse certain costs under these grant agreements qualif[ies] as an

order and then state[s] that those orders or determinations by the FAA are

only appealable in the United States Court[s] of Appeal[s].

This case is slightly different in the sense that this is not a

[g]overnment refusal to reimburse in the first instance, but a [g]overnment

request for reimbursement after it has already paid out the funds from the

grant agreement. In that sense, 47111 is more specific. It applies in

different circumstances, but I do think it’s still instructive. There’s

9

just not any case law that I found explicating 47111 and whether it would

apply to this instance.

Hr’g Tr. 5:21 to 6:18.

Although the court believes that this is an appropriate case for applying the precept

that the specific trumps the general, and that the government has offered no meaningful rationale

to the contrary, it is not actually necessary for the court to decide whether Section 47111 applies

to Tulsa Airports’s claim rather than Section 46110. Either would displace this court’s

jurisdiction under the Tucker Act and vest jurisdiction in either the United States Court of

Appeals for the District of Columbia Circuit or, in this instance, the United States Court of

Appeals for the Tenth Circuit. That does not necessarily end the court’s analysis, however,

because another jurisdictional contention has been advanced by the government, and the

government also asserts that Tulsa Airports can have no claim in any circumstances. The court

will address both of these postulates before proceeding to a disposition.

B. Jurisdictional Time-Bar

Notwithstanding the court’s conclusion that jurisdiction in this court under the Tucker

Act is displaced by provisions of 49 U.S.C. § 47111 or § 46110, the procedural circumstances of

the case require the court to address also the government’s assertion that the court lacks

jurisdiction to entertain Tulsa Airports’s claim under Grant 47 because it is barred by the six-

year statute of limitations set forth in 28 U.S.C. § 2501. Def.’s Mot. at 12-13. 28 U.S.C. § 2501

provides that, “[e]very claim of which the United States Court of Federal Claims has jurisdiction

shall be barred unless the petition thereon is filed within six years after such claim first accrues.”

28 U.S.C. § 2501. A claim first accrues “when all the events have occurred that fix the alleged

liability of the government and entitle the claimant to institute an action.” Ingrum v. United

States, 560 F.3d 1311, 1314 (Fed. Cir. 2009); see also Oceanic S.S. Co. v. United States, 165 Ct.

Cl. 217, 225 (1964). Adherence to the six-year statute of limitations period serves as a condition

of the government’s waiver of sovereign immunity and constitutes a jurisdictional requirement.

See John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008).

In the government’s view, the date of accrual for Tulsa Airports’s claim was July 26,

2006, the date when plaintiff reimbursed the government for costs deemed unallowable under

Grant 47 because, “[a]t that point (possibly earlier), [plaintiff’s] claim . . . could have been

brought” and “all the events it relies upon to supports its claim were ‘fixed.’” Def.’s Mot. at 12.

Tulsa Airports resists the government’s characterization and argues that the parties’ course of

dealing over the period of several years prevented the relevant events from being “fixed” and

resulted in the deferment of the accrual of plaintiff’s claim. First, Tulsa Airports notes that “both

the [g]rant [a]greements and the [accompanying] [h]andbook governing their administration

provide that any payments made thereunder could be adjusted upward or downward at any point

up to the closing of the grants.” Pl.’s Opp’n at 12 (citing Am. Compl. at ¶¶ 25-26). Moreover,

Tulsa Airports observes that it was not an unusual practice for it to seek adjustments while a

grant was open or after it was closed, and grants were at times reopened or amended. Id.

Therefore, Tulsa Airports argues that the proper date of accrual for a claim involving Grant 47

was “September 26, 2012, the date the FAA closed both Grants notwithstanding [plaintiff’s]

outstanding requests for reimbursement (and the last day of the contracts),” or, alternatively,

10

“October 24, 2012 or December 31, 2012, the dates letters were sent by the FAA to [it]”

declining to reimburse plaintiff’s expenses. Id. at 13.9

While typically a claim based upon a contractual obligation of the government to pay

money accrues on “the date when the payment becomes due and is wrongfully withheld in

breach of the contract,” it is also “necessary to ascertain the nature of the agreement that the

parties have made on this point.” Oceanic S.S., 165 Ct. Cl. at 225 (internal citations omitted).

Here, the parties entered agreements that allowed for adjustments, including modifications to

future grants. See, e.g., supra, at 3. Although Tulsa Airports reimbursed the government for

expenses deemed unallowable under Grant 47 on July 26, 2006, that did not end the chain of

events concerning Grant 47. Tulsa Airports submitted a request for reimbursement to the FAA

in January 2012, but the FAA responded in a letter dated May 8, 2012, notifying plaintiff that

Grant 47 needed to be fully closed “with all funds drawn down . . . before the FAA would

consider [plaintiff’s] request for reimbursement under either [Grant 47 or 50].” Pl.’s Opp’n at

13-14. The FAA’s letter suggests that its decision regarding the status of the returned funds was

not final as of May 2012. Indeed, it was not until September 26, 2012, that the FAA ultimately

gave notice to plaintiff that Grant 47 was closed.10 Subsequently, Tulsa Airports followed the

FAA’s instructions and renewed its request for reimbursement in a letter dated October 4, 2012,

after which the FAA issued its October 24 Letter and then its December 31 Letter denying

plaintiff’s request. See id. The fact that the FAA opened the matter for reconsideration in 2012

suggests that Tulsa Airports had no way of knowing that its request to the government was

definitively resolved until December 31, 2012, when the FAA finally rejected plaintiff’s request

for reimbursement; hence, its claim did not accrue until that time. See Kinsey v. United States,

852 F.2d 556, 557 n.* (Fed. Cir. 1988) (“[A] claim does not accrue unless the claimant knew or

should have known that the claim existed.”) (citing Jones v. United States, 801 F.2d 1334, 1335

(Fed. Cir. 1986)). Tulsa Airports’s initial complaint, filed on November 14, 2013, was therefore

well within the six-year limitations period prescribed under Section 2501.

Nonetheless, because the court concludes that its jurisdiction to hear plaintiff’s claims

under the Tucker Act has been displaced by 49 U.S.C. § 47111 or, in the alternative, by 49

U.S.C. § 46110, the applicable statute of limitations is not the six-year period defined under

Section 2501 but rather the one codified within those Sections. Under Section 47111, an

individual appealing an FAA order must file a petition in the United States Court of Appeals “not

later than 60 days after the order is served on the petitioner.” 49 U.S.C. § 47111(d)(3). Because

the FAA apparently did not apply the rudimentary procedural requisites of Section 47111(d),

such service may not have occurred and the time limits of that Section may not have been

triggered. And, under Section 46110, “[t]he petition must be filed not later than 60 days after the

order is issued,” but “[t]he court may allow the petition to be filed after the 60th day only if there

9

Alternatively, Tulsa Airports requests that the statute of limitations be equitably tolled.

Pl.’s Opp’n at 13-15. Given the factual and procedural posture of the case, the court need not

address the issue of tolling.

10

The government argues that Grants 47 and 50 were both closed in 2006. Def.’s Reply

at 7-9. However, the government itself concedes that in 2012 “[t]he grants were reopened” by

the FAA. Id.

11

are reasonable grounds for not filing by the 60th day.” 49 U.S.C. § 46110(a). As stated supra,

the court need not determine which of the two sections applies; nor need it determine the precise

date on which plaintiff’s claim accrued. Further resolution of the issue of time-barring may be

taken up by a court of appeals.

C. Failure to State a Claim

Finally, the government seeks dismissal on the grounds of Tulsa Airports’s failure to state

a claim upon which relief may be granted. Dismissal is appropriate under Rule 12(b)(6) if the

“facts asserted by the claimant do not under the law entitle him to a remedy.” Perez v. United

States, 156 F.3d 1366, 1370 (Fed. Cir. 1998). To survive a motion to dismiss for failure to state

a claim, the complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In

addition, the facts alleged must “‘plausibly suggest[] (not merely [be] consistent with)’ a

showing of entitlement to relief.” Cary v. United States, 552 F.3d 1373, 1376 (Fed. Cir. 2009)

(quoting Twombly, 550 U.S. at 557). While the complaint “does not need detailed factual

allegations,” Twombly, 550 U.S. at 545, it must present more than “‘naked assertion[s] devoid of

‘further factual enhancement,’” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557)

(alteration in original), or “the-defendant-unlawfully-harmed-me-accusation[s],” id. (citing

Twombly, 550 U.S. at 555). In determining whether the plaintiff has pled adequate facts to allow

the court to infer that his or her entitlement to relief is plausible—not merely possible—the court

must “draw on its judicial experience and common sense,” id. at 679, and “must accept as true

the complaint’s undisputed factual allegations and should construe them in a light most favorable

to the plaintiff,” Cambridge v. United States, 558 F.3d 1331, 1335 (Fed. Cir. 2009) (citing

Papasan v. Allain, 478 U.S. 265, 283 (1986); Gould, Inc. v. United States, 935 F.2d 1271, 1274

(Fed. Cir. 1991)).

The government argues that Tulsa Airports fails to state a claim because it has “failed to

adequately plead that it suffered any damage.” Def.’s Mot. at 13.11 Specifically, the government

states that Tulsa Airports “admits that it has exhausted both grants and received all the money

contemplated in both agreements.” Id. at 14. In the government’s view, because the money

sought by Tulsa Airports was never contemplated by either grant agreement and exceeded the

dollar limitations for each grant, any damages “would amount to extra-contractual recovery.” Id.

The government’s argument ignores both the statutory authority granted to the FAA to

modify initial award amounts and the parties’ course of dealing. Under 49 U.S.C. § 47108(b),

the FAA is authorized to increase the maximum amount that the government may pay by up to

11

Suffering damages is one of the four essential elements of a breach-of-contract claim,

which include: (1) the existence of a contract; (2) a duty arising out of that contract; (3) a breach

of the duty; and (4) damages caused by the breach. Def.’s Mot. at 13 (citing San Carlos

Irrigation & Drainage Dist. v. United States, 877 F.2d 957, 959 (Fed. Cir. 1989)).

12

fifteen percent for grants approved after September 30, 1987, which includes Grants 47 and 50.

See Pl.’s Opp’n at 16 (citing 49 U.S.C. § 47108(b)).12 Notably, the FAA had previously

increased the grant amounts in connection with Tulsa Airports Noise Abatement Program,

including specific upward adjustments to Grants 47 and 50. Hr’g Tr. 50:9-51:5; Pl.’s Opp’n at

16-17 (citing Am. Compl. ¶ 27). As Tulsa Airports notes, “[i]t was not unusual for grants to be

reopened or amended” or for “costs not reimbursed under one grant [to be] charged to another.”

Pl.’s Opp’n at 16. Therefore, the fact that Tulsa Airports received the nominal amounts

promised by the FAA in Grants 47 and 50 does not preclude plaintiff from claiming $705,913.40

in damages associated with delay costs incurred while carrying out the project. The 15%

limitation reportedly has not yet been exceeded for either of the Grants. Tulsa Airports has

adequately stated a claim upon which relief can be granted.

II. Transfer

Ordinarily, dismissal is required as a matter of law if a court lacks jurisdiction to decide

the merits of a case. Johnson v. United States, 105 Fed. Cl. 85, 91 (2012). However, under

some circumstances, a federal court that lacks jurisdiction over a case may transfer the action to

a federal court that does have jurisdiction. See Gray v. United States, 69 Fed. Cl. 95, 98 (2005).

Pursuant to 28 U.S.C. § 1631, transfer of a case is appropriate if “(1) the transferor court lacks

jurisdiction; (2) the action could have been brought in the transferee court at the time it was filed;

and (3) transfer is in the interest of justice.” Zoltek Corp. v. United States, 672 F.3d 1309, 1314

(Fed. Cir. 2012); see also Skillo v. United States, 68 Fed. Cl. 734, 744 (2005) (citing Kolek v.

Enyen, 869 F.2d 1281, 1284 (9th Cir. 1989); Rodriguez v. United States, 862 F.2d 1558, 1559-60

(Fed. Cir. 1988); Sodexho Marriott Mgmt., Inc. v. United States, 61 Fed. Cl. 229, 241 (2004)).13

Under the circumstances presented, all three prerequisites of 28 U.S.C. § 1631 are

satisfied. First, as explained supra, the court lacks subject matter jurisdiction to adjudicate Tulsa

Airports’s claims due to the displacement of jurisdiction under the Tucker Act by 49 U.S.C.

§ 47111, or alternatively 49 U.S.C. § 46110. Under either of these statutes, Tulsa Airports’s

claims originally could have been filed in either of two federal court of appeals. Section 47111

stipulates that a party may file its petition “in the United States Court of Appeals for the District

12

In pertinent part, Section 47108 states: “For a project receiving assistance under a grant

approved under the Act . . . the amount [stated in the offer as the maximum amount the

government will pay] may be increased . . . for an airport development project, by not more than

15 percent . . . .” 49 U.S.C. § 47108(b)(3)(A).

13

Section 1631 provides, in relevant part:

[T]he court shall, if it is in the interest of justice, transfer such action or appeal to

any other such court in which the action or appeal could have been brought at the

time it was filed or noticed, and the action or appeal shall proceed as if it had been

filed in or noticed for the court to which it is transferred on the date upon which it

was actually filed in or noticed for the court from which it is transferred.

28 U.S.C. § 1631.

13

of Columbia Circuit or in the court of appeals of the United States for the circuit in which the

project is located.” 49 U.S.C. § 47111(d)(3). Section 46110 allows a party applying for review

of an order to file 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.” 49 U.S.C. § 46110(a). Accordingly, Tulsa

Airports’s claim could have been brought before the United States Court of Appeals for the

District of Columbia Circuit or the United States Court of Appeals for the Tenth Circuit, the

territorial reach of which encompasses Tulsa, Oklahoma, plaintiff’s principal place of business

and the location of the Noise Abatement Program.14 Finally, transfer would be in the interest of

justice because Tulsa Airports has not yet had an opportunity to have its claims heard on the

merits and the United States Courts of Appeals were specifically designated by Congress as the

appropriate fora for adjudication of claims of the type raised by plaintiff. See Galloway Farms,

Inc. v. United States, 834 F.2d 998, 1000 (Fed. Cir. 1987) (“The phrase ‘if it is in the interest of

justice’ relates to claims which are nonfrivolous and as such should be decided on the merits.”)

(citing Zinger Construction Co. v. United States, 753 F.2d 1053, 1055 (Fed. Cir. 1985)); cf.

Johnson, 105 Fed. Cl. 96 (declining to transfer case where plaintiff had already brought two

actions in transferee court on the same subject).

The parties have indicated to the court that they would prefer that the court transfer the

case to the United States Court of Appeals for the Tenth Circuit. See Hr’g Tr. 54:18-22.

Accordingly, the court shall transfer the case to that court.

CONCLUSION

For the reasons stated, the government’s motion to dismiss for lack of subject matter

jurisdiction and for failure to state a claim upon which relief can be granted is DENIED.

Pursuant to 28 U.S.C. § 1631, the case shall be transferred to the United States Court of Appeals

for the Tenth Circuit. The clerk is directed to effectuate the transfer.

14

As discussed, supra, Sections 46110 and 47111 each require that petitions be filed

within 60 days of the applicable FAA order. However, Section 46110 states that the court may

allow a petition to be filed after the 60th day if there are “reasonable grounds for not filing by the

60th day.” 49 U.S.C. § 46110(a); see also Hr’g Tr. 52:18-23. Given the parties’ course of

dealing, discussed supra, at 3-4, the transferee court may find that such “reasonable grounds”

existed here. See Ligon, 614 F.3d at 158 n.5 (declining to transfer where plaintiff filed a claim in

the district court 90 days after the FAA issued its relevant order because plaintiff “has provided

no reasonable grounds for his failure to file by the 60th day, so § 1631 cannot save him from the

procedural requirements of § 46110.”); cf. Johnson, 105 Fed. Cl. at 95 (declaring transfer

improper where plaintiff’s tort claims manifestly would not have been filed within the transferee

court’s limitations period). Additionally, the absence of compliance by the FAA with the

procedural requirements of 49 U.S.C. § 47111(d), may mean that the limitations period specified

in that Section was never triggered. See supra, at 11-12. In either setting, Tulsa Airports would

have a potentially viable argument that its claim is timely in a court of appeals.

14

It is so ORDERED.

s/ Charles F. Lettow

Charles F. Lettow

Judge

15