Petition for Writ of Certiorari — Harris v. Federal Aviation Administration

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No. 03-

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IN THE

Supreme Court of the United States

ROBERT HARRIS, et al.,

Petitioners,

v.

FEDERAL AVIATION ADMINISTRATION and

JANE F. GARVEY, Administrator of the

Federal Aviation Administration,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COuRT OF APPEALS FOR THE

District OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Joet C. GLANSTEIN

Op Counsel: Counsel of Record

JONATHAN R. SIEGEL David M. GLANSTEIN

Professor of Law O’DONNELL, SCHWARTZ,

GEORGE WASHINGTON UNIVERSITY GLANSTEIN & Litty, LLP

Law SCHOOL Attorneys for Petitioners

2000 H. Street, NW 60 East 42nd Street

Washington, D.C. 20052 New York, NY 10165

(202) 994-7453 (212) 370-5100

e-

l.

I

QUESTIONS PRESENTED FOR REVIEW

Whether a claimant seeking judicial review of agency

action under 5 U.S.C. § 704 must demonstrate direct and

immediate hardship if review is postponed, rather than the

mere prospect of hardship, for the dispute to be ripe for

judicial review?

Whether a claim for review of agency action accrues for

- limitations purposes only when a claimant demonstrates

direct and immediate hardship or injury?

il

PARTIES TO THE PROCEEDINGS

Petitioners

Petitioners are: ROBERT HARRIS, VICTOR CORDERO

NILS MOBERG, LARRY AMBROSE, DUANE C. ATWOOD,

JOHN BALBI, BRIAN BARNES, FRANCIS BASTIS, JOHN

BATES, DENNIS BEARD, TOM BERTI, DAN P. BIGELOW,

BRUCE E. BLAIR, JAMES BLAIR, FORREST BRADLEY,

JR., DAVE BRAGGS, ROGER BRODE, CLEMENT BROWN,

MICHAEL BURY, JOSE CALDERON, ROY CANTWELL,

JOHN T. CARDINAL, PETE CARUSO, THOMAS

CEPEDA, JR., DAVID J. CLARKE, JAMES CLARRY,

JAMES R. CLEARY, ALAN COLEMAN, JOEY M. COLLIER,

TOMMY H. COX, TOM ROY CRIST, RICK R. CROOK,

CHARLES J. DAVIS, PETE DEMARCO, WILLIAM J.

DEACY, ED DEAN, DENNIS DELEONARDIS, WILLIAM

T. DEVINE, TOM DOERR, DOMINIC DINNOCENTI,

DENNIS L. DONAHUE, DAN DONOVAN, DAVID E.

DOWD, JACK L. DOWNIE, KNUTE DRESDEN, ROBERT

DREWLO, ROBERT DUNLAP, SR., KARL EICHEN,

DUANE A. ENGLE, ANDREW H. ESTERLY, JOHN REID

EVANS, STEVEN FANNO, LARRY J. FITZSIMMONS,

GEORGE H. GADDIE, JOHN M. GANNAWAY, BARTON

E. GARY, RUDOLPH W. AYDE, THOMAS GEARY, ALBERT

GEBROSKY, ROBERT GONZALEZ, LARRY G. GORE,

JOHN A. GRANT, GREG HAMMONDS, GEORGE E.

HAYES, JOE HEFLIN, KEN HENDERSON, JAMES A.

HENRY, KEN HEWITT, RONALD HODOWAINE, ROBERT

HOLOCHER, JERRY HOLT, ROBERT E. HOST, PAULA.

JAN, BRUCE JOHNSON, LOUIS TOM JOHNSON,

PHILLIP W. JOHNSON, VIRGIL L. JOHNSON, WILLIAM

KALLAY, JAMES P. KELLY, DIANE L. KLINE, DORI

KOHLBERG, TOM LADUKE, RONALD L. LANCASTER,

|

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GEORGE R. LECHLEITNER, KAREN LEE, GARY V.

LEECH, TOM LIPSCOMB, ANNA G. LISSAK, SAMUEL

A. MARRINER, HAROLD MARTIN, DAVID D. MASSON,

TOM MATTHEWS, TERRENCE L. MCCLAIN, JAMES W.

MCINTYRE, JOHN J. MCNAUGHTON, ROY McWATT,

- ROBERT R. MEADOWS, JOE MERIGOLD, WILLIAM C.

MERRITT, JOHN E. MISNER, KENT MITCHELL, J OHN

CRAIG MOODY, TOM MOONEY, HOWARD MORRIS,

ROYCE MORRISON, DONALD A. MOSHER, BETTY

MURPHY, FRANK MURPHY, JAMES P. MUSONE, JOHN

NEECE, MICHAEL NICE, GARY NOGLE, JOHN C.

OLSEN, KENNETH OLSEN, RAMON OLIVAS, JULIO

ORTIZ, DAVID PARKER, JAMES J. PASSIALES, THOMAS

PESNICAK, WILLIAM T. PHILLIPS, HAROLD F. PIERCE,

DALE L. PORTER, ANDREW M. PRICE, HUGH PRIOR,

WILLIAM RICHARDS, JAMES RINEHART, SEFERINO

RIOS, JR., DAVE ROBERTSON, GEORGE ROBINSON,

RONALD J. ROBISON, THOMAS RUBRECHT,

EDWARD F. RUCKER, HENRY RYTTER, CHARLES

R. SALVAGGIONE, DAN A. SARUSAL, JAMES A.

SCARBOROUGH, THOMAS W. SCHAEFER, DAVE iB

SCHISSLER, ED SCHROER, RICHARD L. SHAFER, BOB

SHAINLINE, DANIEL P. SHARKEY, JIM SHEARER,

DUNCAN SHOBERG, FRANK SHOMILAK, DOUGLAS E.

SHULL, BILL SIEGMUND, BOB SIEGMUND, J OHN M.

SIMS, FELIX SKARPA, ERIC L. SLETTEN, FREDERICK

D. SNYDER, ANGELO SORRENTINO, ANTHONY F.

STANGO, PAUL L. STEVENS, MICHAEL TALLERICO,

TONY TALLERICO, GABRIEL TATAY, MICHAEL TELFER,

ED TOTEDO, RICK TOURIN, CECIL TROLLINGER,

GLENN TRUESDELL, TONY VARDA, JULIO VEGA,

ANTHONY WARD, ROY WARNER, NICHOLAS W.

WILLIAMS, JOHN WINTERS, SHELBY WRIGHT, AARON

V. YEARY, AL ZADOW.

iv

Respondents

The Federal Aviation Administration is an operating

administration of the U.S. Department of Transportation, a

cabinet level department of the government of the United States.

Jane Garvey was Administrator of the Federal Aviation

Administration during the pendency of this action. Respondents

Federal Aviation Administration, U.S. Department of

Transportation, and Jane Garvey were the Defendants in the

District Court and the Appellees in the District of Columbia Circuit

Court of Appeals.

Vv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ...... i

PARTIES TO THE PROCEEDINGS ............ il

BPI UO CORNERING ook cick dbaductccacees Vv

TABLE OF CITED AUTHORITIES ............ Vii

FABLE OF APPENDICES ..c cc ccccccvecases: X1i

(Pee UA 63a cuit kokecbeaae en ]

Ps PATE Nas 5 4k Finis 15k5 a l

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ................. l

STATEMENT OF THE CASE .......0.cceecees 3

Ri, SE ek cy areas aoa bea eee 3

2. Proceedings In The District Court. ..... ase 5

3. Proceedings On Appeal. ..............5: 6

REASONS FOR GRANTING THE PETITION ... 6

I. The D.C. Circuit’s Opinion Involves An

Important Question Of Federal Law As To

What Degree of Hardship Claimants Seeking

Review Of Agency Action Must Present To

A Court To Satisfy The Ripeness Doctrine.

vi

Contents

Page

II. There Is A Conflict Among The Circuit Courts

Regarding Whether Direct And Immediate

Hardship To Claimants, Or The Mere

Prospect Of Hardship, Makes A Case Ripe

For Judicial ROVIGW. .....cccscenccceces 12

III. The D.C. Circuit’s Opinion Is Incorrect As A

gt ge erence ry err rere 19

CES Ka wi eee on ek eee eee 25

Vil

TABLE OF CITED AUTHORITIES

Page

CASES: “

Abbott Laboratories v. Gardner,

eT Wiss RPEEOED hn 0 ooo bok hak kee ence 9,10, 13

Adult Video Assn. v. U.S. Dept. of Justice,

ee of) a> 2.) ee 13

Babbitt v. United Farm Workers National Union,

ae Wa BP EU EOT vc a ck c bce een ieeoxncan 18, 21

CEC Energy Co. v. Public Service Commn.

Of the Virgin Islands,

S91 F.2d 1107 (3™ Cir. 1989) .........c cece. 18

Central and South West Services Inc. v. U.S. E.P.A.,

aU F.00 GBs CF" Cle, FOOD) gnc vcccccccccves 16

Clean Air Implementation Project v.

Environmental Prot. Agency,

150 F.3d 1200 (D.C. Cir. 1998) .............. 10

Crown Coat Co. v. United States,

Be ere We RE 5 oh Ke ha hc hk a deers 21-22

Doe v. County Centre,

242 F.3d 437 (3™ Cir. 2001) .......... PP ae 18

Duke Power Co. v. Carolina Environmental

Study Group,

ee Ges PUTED cd co os evo u desc cee bawcx ya ee

vill

Cited Authorities

Dunn-McCampbell Royalty v. National

- Park Service,

tye A By stats BS) : | re

Franks v. Ross,

313 F.3d 166 C6? Cie, BOGE) onc eccecccccwenss

General Electric Corp. v. Environmental

Protection Agency,

290 F.50 377 OK. CH FOGE) cee cesecvenese

Home Builders Assn. of Greater Chicago v.

U.S. Army Corp of Engineers,

35 F306 GOT CF? Ca BOGS) ccccevcccsevesene

HRI Inc., v. E.P.A..,

196 F.36 1224 (10° Cor, 2000) 2. cr cccccecetas

Impro Products Inc. v. Block,

Van Pde O45 COL. Cie, IFRS) onc esccccecnnse

Jobs Training & Services Inc. v. East Texas

Council of Governments,

eo a Bb y) ls 2: re

Louisiana Environmental Action Network v. Browner,

S7 F.30 E379 GO. Cae, TGS) 2 nec cciccccves

Lujan v. National Wildlife Federation,

Se Ore Cee 6 6 5 54s 85 baer davies

Page

22

10

11

17

22

16

22

10

ix

Cited Authorities

Page

Massachusetts Assn. of Afro-American Police Inc.

v. Boston Police Dep t., |

973 F.2d 18 (1* Cir. 1992) ............... 14, 15, 16

Mobil Exploration & Producing U.S., Inc. y.

Department of Interior,

180 F.3d 1192 (10" Cir. 1999) .............., 17

National Assn. of Minority Contractors,

Dayton v. Martinez,

248 F. Supp. 2d 679 (S.D. Ohio 2002) ........ 13

National Park Hospitality Assn. y.

Department of the Interior,

ee ee 9, 11

North American Aviation Properties, Inc. y.

National Transportation Safety Board,

OG FG BOZ9 (SO Cir. F996) onc nc ccccccccess 13, 14

Norton v. Ashcroft,

298 F.3d 547 (6" Cir. 2002) ................. 13

Ohio Forestry Assn., Inc. v. Sierra Club,

FOP Wills TRO UROOOD ccc cccccccvcceten 70, 18, 12. 17

Park Lake Resources L.L.C. y.

U.S. Department of Agriculture,

197 F.3d 448 (10™ Cir. 1999) ................ 17

Cited Authorities

Peachlum vy. City of York, Pa.,

PSG Do FR gh SA) re

Peoples Rights Organization Inc. v.

City of Columbus,

he eo ee ek OA... | Serna

Reno v. Catholic Social Services, Inc.,

De A OE aoe Aa eK ee era oe

Riva v. Commonwealth of Massachusetts,

Be Eel a nr

Spannus v. U.S. Dept. of Justice,

BOO Fae oe Cee. Ce FOE 6 oo oe cess ceeees

Sprint Corp. v. F-C.C.,

Sak FOG Sak Cae GE, BP) hn e h eds sa ces

Texas Office of Public Utility Counsel v. F-C.C.,

eg we ik a. rere

Texas v. United States,

eg | ee ee er ore

Thomas v. Union Carbide Agricultural Prod. Co.,

ee ee were rere

Toilet Goods Assn. v. Gardner,

ee Ss 65 5 ee RSS rN

Page

18

13

uu?

14

21

23

16

1]

11

x1

Cited Authorities

United States v. Wayne County, MI,

280 F. Supp. 2d 726 (E.D. Mich. e00s) 5.5.

Utah v. U.S. Depariment of Interior,

210 F.3d 1193 (10% Cir. 2000) ............

Western Oil and Gas Assn. v. Sonoma County,

90D F.20 1287 9" Cir. 1900) . ooo vce ns

Constitutional And Statutory Provisions:

U.S. Constitution, Article III, Section 2, Clause

eee 2 ee Se. ne

Title 5 United States Code, Section 704

Page

eae ag

re 17

— 18

I,

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

SPS Ee Se PR SD AS ED OO ES ESE Se OSS 2 Oe See Se aS ee

Title 28 United States Code, Section 2401(a)

6 2k So oS) es

1, 2,3, 21

Xil

TABLE OFAPPENDICES

) Page

Appendix A — Opinion Of The United States Court

Of Appeals For The District Of Columbia Circuit

Decided January 13, Z0O4 .. ww cect e vente la

Appendix B — Memorandum Opinion And Order

Of The United States District Court For The

District Of Columbia Dated And Filed August 29,

DE ee ees Tee ee ee ee ee Orr 14a

l

Robert Harris et al. respectfully petition for a Writ of

Certiorari to review the decision of the District of Columbia

Circuit Court of Appeals in this case.

OPINIONS BELOW

The District of Columbia Circuit’s opinion (App. A at

la) is reported at Robert Harris et al. v. Federal Aviation

Administration, 353 F.3d 1006 (D.C. Cir. 2004). The District

Court’s Opinion (App. B at 14a) is reported at Robert Harris

et al. v. Federal Aviation Administration, 215 F. Supp. 2d

209 (D.D.C. 2003).

JURISDICTION

The Opinion of the United States Court of Appeals was

issued on January 13, 2004. This court’s jurisdiction is

invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Constitution, Article III, Section 2, Clause 1

Jurisdiction Of Courts.

U.S. Const. Art. 3, § 2, clause 1 provides:

The judicial power shall extend to al!

Cases, in Law and Equity, arising under this

Constitution, the Laws of the United States,

and Treaties made, or which shall be made,

under their Authority; -to all Cases affecting

Ambassadors, other public Ministers and

2

Consuls; -to all Cases of admiralty and

maritime Jurisdiction, -to Controversies to

which the United States shall be a Party;

-to Controversies between two or more States;

-between a State and Citizens of another State;

-between-Citizens of different States; -between

Citizens of the same State claiming Lands

under Grants of different States, and between

a State, or the Citizens thereof, and foreign

States, Citizens or Subjects.

Title 5 United States Code, Section 704

Actions reviewable.

5 U.S.C. § 704, provides:

Agency action made reviewable by statute and

final agency action for which there is no other

adequate remedy in a court are subject to

judicial review. A preliminary, procedural, or

intermediate agency action or ruling not

directly reviewable is subject to review on the

review of the final agency action. Except as

otherwise expressly required by statute,

agency action otherwise final is final for the

purposes of this section whether or not there

has been presented or determined an

application for a declaratory order, for any

form of reconsideration, or, unless the agency

otherwise requires by rule and provides that

the action meanwhile is inoperative, for an

appeal to superior agency authority.

3

Title 28 United States Code, Section 2401(a)

Time for commencing action against United

States.

28 U.S.C. § 2401(a) provides:

Except as provided by the Contract Disputes

Act of 1978, every 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. The action of

any person under legal disability or beyond

the seas at the time the claim accrues may be

commenced within three years after the

disability ceases.

STATEMENT OF THE CASE

l. Facts.

Petitioners Robert Harris et al. are one hundred and

seventy two current and retired air traffic controllers who

were among the approximately eleven thousand federal air

traffic controllers barred from further employment with the

Federal Aviation Administration (hereinafter “FAA”) in 1981

as the result of a job action. All eleven thousand barred

controllers were made eligible again for FAA air traffic

control positions following the issuance of a memorandum

order in August 1993 by President William J. Clinton.

Following the issuance of President Clinton’s

memorandum order, the FAA issued Recruitment Notice

93-01 effective from September 1, 1993 to October 15, 1993.

4

This Notice described an opportunity for petitioners and other

formerly barred controllers to reapply for FAA air traffic

control work. This Notice made clear, however, that its sole

purpose was to establish an “inventory of applicants” to be

considered for future openings at the FAA, and that there

was no guarantee, or even likelihood, that any applicant

thereunder would be rehired.

There were several reasons for these limitations

articulated in the Notice. First, during the time the Notice

was effective the FAA was operating under an agency-wide

hiring freeze. Second, once the hiring freeze ended the

FAA “expect[ed] to fill only a small number of [air traffic

controller] positions. ...over the next few years.” Finally,

~the Notice was not the sole avenue for rehire available to

formerly barred air traffic controllers. The Notice also stated

that the FAA anticipated filling any future air traffic controller

openings from “a variety of sources.”

For all of these reasons, the Notice observed,

“employment opportunities are limited; there is no guarantee

that candidates will be referred or selected.” All the

petitioners were among those formerly barred controllers

eventually rehired between 1995 and 1998 pursuant to their

applications under the Recruitment Notice, which stated that

if any applicants were rehired, it would be at grade level

GS-9.

Petitioners were among a group of approximately eight

hundred formerly barred air traffic controllers who were

rehired by the FAA from 1995 to 1998, fewer than one in ten

of the number separated from the FAA in 1981. Unlike

petitioners, some of those eight hundred came back to FAA -

employment through different avenues than Recruitment

Notice 93-01.

5

Petitioners filed their complaint on March 8, 2001 under

the Administrative Procedure Act, 5 U.S.C. § 704 (hereinafter

“APA”) to challenge as arbitrary and capricious the FAA’s

decision to disregard their prior highest pay grades and

performance steps upon their re-employment with the FAA

from 1995 to 1998 and to rehire them at grade level GS-9, a

level below their previous highest grades.

The gravamen of their complaint is that the FAA

arbitrarily assigned to them a grade level for trainees which

did not account for their prior air traffic control experience.

Also, petitioners contended the FAA’s decision was arbitrary

and capricious because it was contrary to established agency

personnel practices mandating that employees who leave

government service will be returned at their previous highest

grades and steps.

2. Proceedings In The District Court.

Respondents filed a motion for dismissal or for summary

judgment on March 5, 2002. The District Court entered its

Memorandum Opinion and Order dismissing this case on

jurisdictional grounds on August 29, 2002. The District Court

concluded that petitioners’ claims accrued under 28 U.S.C.

§ 2401(a) in 1993 upon the issuance of Recruitment Notice

93-01. The District Court reasoned that petitioners’ claims

accrued in 1993 because Recruitment Notice 93-01

constituted final agency action and also that petitieners’

claims were ripe for review in 1993, even though the Notice

expressly stated that no hiring was expected for years due to

a hiring freeze and there was no guarantee of rehire for any

individual or group of applicants. The District Court did not

evaluate the hardship petitioners faced in 1993: it concluded

that the dispute was fit for review and therefore ripe enough

in 1993 to commence the running of the statute of limitations.

EEE

6

3. Proceedings On Appeal.

Petitioners filed their Notice of Appeal on September

24, 2002. The District of Columbia Circuit’s decision

affirming the District Court’s decision was entered on January

13, 2004. The D.C. Circuit held that petitioners’ claims

accrued under 28 U.S.C. § 2401(a) in 1993 because

Recruitment Notice 93-01 constituted final agency action and

because their claims were ripe for review in 1993, absent

any direct hardship, due to the mere “prospect of hardship”

petitioners faced from the terms of the Notice if they were

eventually rehired by the FAA.

REASONS FOR GRANTING THE PETITION

It is a fundamental justiciability doctrine that any cases

brought before a court must be ripe for judicial review, and

this doctrine is applied in cases involving the agencies of

the United States and other government entities on a daily

basis. Clarity and consistency among the courts in the

application of the ripeness doctrine is important for efficient

judicial administration.

This Court should accept this case to reaffirm that

courts must look for direct hardship to parties, not the mere

“prospect” of hardship if review is withheld, in order to find

ripe disputes involving review of agency action. This will

prevent wasted judicial resources on cases and controversies

which are not ready to be adjudicated. Absent direct and

immediate hardship to the parties seeking relief from the

challenged agency actions, courts are faced with hypothetical

disputes that need no judicial intervention. Indeed, courts

often need to raise questions of ripeness concerning various

disputes on their own, and this Court has addressed the

5

ripeness of disputes before it on its own motion. Reno vy.

Catholic Social Services, Inc., 509 U.S. 43, 57 n.18 (1993).

This Court’s reaffirmance of its standards on the

importan: question of what is the proper degree of hardship

a claimant must demonstrate to make a case ripe for review

is urgently warranted due to the importance of the ripeness

doctrine to the effective administration of the courts. Letting

stand the D.C. Circuit’s holding in this case, that the mere

“prospect of hardship” makes a case ripe for review before

any litigant can know whether he will be adversely affected

by the challenged agency action, invites potentially massive

numbers of claims for review of agency action, most of which

will likely be premature and unnecessary, that will seriously

burden the federal courts.

The D.C. Circuit’s opinion also must be reviewed to

resolve its conflict with the holdings of at least five other

Circuit Courts of Appeals, all of which require a showing of

direct and immediate hardship, or at least the probable threat

of immediate hardship if review is postponed, for a dispute

to be ripe for review. The D.C. Circuit’s decision that

petitioners’ claims were ripe based on the mere “prospect of

hardship” from Recruitment Notice 93-01, which by its terms

observed it could lead to nothing at all for petitioners,

conflicts squarely with the holdings of other circuit courts

of appeals on when disputes over agency action are ripe for

review.

In their jurisprudence involving actions against various

government agencies the First, Third, Fifth, Sixth, and Tenth

Circuits have all determined that direct, immediate, or clearly

predictable adverse consequences must flow from agency

action for claimants to satisfy the hardship element of

8

ripeness, since only then will claimants face hardship if

review is postponed. This approach, rather than the reasoning

of the D.C. Circuit here, is more consistent with this Court’s

holdings that claims seeking review of agency action only

accrue when claimants can demonstrate there is actual injury

to their interests, thereby creating an actual controversy ripe

for judicial consideration.

These Circuit Courts of Appeals have defined the

hardship element of ripeness differently from the D.C.

Circuit. They have properly followed this Court’s holdings

that an agency action is only ripe to be challenged when a

claimant’s conduct is altered, or when a potential claimant

can predict with certainty some actual adverse impact or

injury stemming from the challenged agency action.

Finally, the D.C. Circuit’s opinion must be overturned

because it is incorrect as a matter of law in light of this Court’s

precedents stating that a case is not ripe when the hardship

to plaintiffs is contingent on future events which might not

occur as anticipated or might not occur at all. It was also

incorrect as a matter of law for the D.C. Circuit to hold that

petitioners’ claims accrued as ripe under the relevant statute

of limitations governing their action because no direct,

probable hardship existed, or present injury resulted for them,

from the FAA’s issuance of the Recruitment Notice in 1993.

Anyone claiming direct or likely hardship or injury in 1993

would have been merely speculating that they were going to

be rehired by the FAA, an event far from certain according

to Recruitment Notice 93-01.

9

I. The D.C. Circuit’s Opinion Involves An Important

Question Of Federal Law As To What Degree of

Hardship Claimants Seeking Review Of Agency

Action Must Present To A Court To Satisfy The

Ripeness Doctrine.

The issues in this case are of exceptional importance

under federal law because all claimants seeking review of

agency action must demonstrate their disputes are ripe for

judicial consideration. In this case, none of the petitioners

could predict in 1993 whether any one of them, or anyone at

all, would be adversely affected by the terms of Recruitment

Notice 93-01 since no one, as the FAA observed in its

Recruitment Notice, had any guarantee or expectation of

actually being hired. Since claimants can only seek relief

from agency action when their claims are ripe for review,

reaffirming the proper degree of hardship in the ripeness

inquiry is important for efficient judicial administration of

claims for review of agency action.

Ripeness is a prerequisite for judicial review meant

“to prevent the courts, through the avoidance of premature

adjudication, from entangling themselves in abstract

disagreements over administrative policies, and also to

protect agencies from judicial interference until an

administrative decision has been formalized and its effects

felt in a concrete way by the challenging parties.” National

Park Hospitality Association v. Department of the Interior,

538 U.S. 803, 808 (2003) (quoting Abbott Laboratories v.

Gardner, 387 U.S. 136, 148-49 (i 967)). This doctrine stems

both from Article III of the Constitution and from “prudential

reasons’’ not to exercise jurisdiction. /d. at 808, quoting Reno,

supra, at 57.

10

Controversies abound concerning formal agency actions,

such as rulemaking and adjudication, as well as informal agency

directives or policy statements. To determine whether a

controversy is ripe for judicial review, this Court has dictated

that courts must examine “the fitness of the issues for judicial

decision and the hardship to the parties of withholding court

consideration.” Abbott Labs, supra, at 148. This Court has

defined this inquiry to involve consideration of “(1) whether

delayed review would cause hardship to the plaintiffs;

(2) whether judicial intervention would inappropriately interfere

with further administrative action; and (3) whether the courts

would benefit from further factual development of the issues

presented.” Ohio Forestry Assn., Inc. v. Sierra Club, 523 U.S.

726, 733-34 (1998). This Court has also held that an important

element of the ripeness inquiry is that claimants demonstrate

“significant practical harm” to the interests they seek to

protect at the time they seek review of the challenged agency

action. /d. at 733.

Fitness must be determined by assessing whether the

controversy is purely abstract, or whether judicial resolution

would benefit from “concrete action applying the regulation to

the [claimants] situation in a fashion that harms. .. .”. Clean

Air Implementation Project v. Environmental Protection Agency,

150 F.3d 1200, 1204 (D.C. Cir. 1998) (citing Lujan v. National

Wildlife Federation, 497 U.S. 871, 891 (1990)). Once fitness is

established the hardship of withholding review must also be

addressed, except where Congress has declared a preference

for immediacy of review of agency action. General Electric

Corp. v. Environmental Protection Agency, 290 F.3d 377, 381

(D.C. Cir. 2002).

This Court has rejected the notion that claimants with only

speculative injuries or hardship present disputes ripe for judicial

1]

review. Texas v. United States, 523 U.S. 296, 300-01 (1998).

As such, some circuit courts of appeals properly reject claims

that disputes are ripe where, as here, the claimants could only

show the harm to them from withholding review was purely

speculative. Home Builders Assn. of Greater Chicago v. U.S.

Army Corps of Engineers, 335 F.3d 607, 619 (7" Cir. 2003).

The hardship. element of ripeness has been further

defined to mean that a claimant’s action is ripe for review

when hardship is demonstrated by its impact on the claimant’s

conduct. Agency action which is not felt immediately, but

rather has no effect on the day to day affairs of those subject

to it, is less likely to be ripe for review. Toilet Goods Assn. v.

Gardner, 387 U.S. 158, 164 (1967).

As such, this Court has also held that a showing of

hardship from postponing review is made where agency

action creates “adverse effects of a strictly legal kind” and is

not present where the agency action “do[es] not command

anyone to do anything or to refrain from doing anything;

[it] do{es] not grant, withhold, or modify any formal legal

license, power, or authority; [it] does not subject anyone to

any civil or criminal liability; [and it] create[s] no legal rights

or obligations.” National Park Hospitality Assn., supra, at

808 (quoting Ohio Forestry Assn., supra, at 734). Where a

party’s claims turn on “contingent future events that may not

occur as anticipated, or indeed may not occur at all,” a case

is not ripe for judicial review. Thomas v. Union Carbide

Agricultural Prod. Co., 473 U.S. 568, 580-81 (1985). :

None of the petitioners or any of the other eleWen

thousand former controllers had any reason to seek court

review in 1993 since none of them were adversely affected

by the Recruitment Notice until fewer than one in ae were

et ee ee ee

12

offered reemployment years later. Any practical hardship or

injury to claimants was therefore contingent on their being

rehired, which only occurred years after the Notice was

issued.

The D.C. Circuit’s holding will undoubtedly propel

numerous claimants into courts to challenge agency actions,

absent any direct or immediate hardship to them if review is

postponed, based on the mere “prospect of hardship.”

This will not only entangle the courts in unnecessary and

burdensome litigation, it will likely delay and interfere with

agency decision making, which in many of these cases will

be incomplete, due to the need to address ongoing litigation.

For all these reasons, this issue of what degree of hardship

from agency action must exist to present a claim ripe for

judicial review is important for this Court to resolve.

II. There Is A Conflict Among The Circuit Courts

Regarding Whether Direct And Immediate Hardship

To Claimants, Or The Mere Prospect Of Hardship,

Makes A Case Ripe For Judicial Review.

The issues raised in this case are also of exceptional

importance because there is a split among the Circuit Courts

of Appeals regarding what degree of hardship claimants must

demonstrate they will suffer if review of challenged

agency action is postponed. This Court has held ripeness

involves consideration of whether delay in review will

cause significant hardship to claimants, whether judicial

intervention will interfere with further agency action,

and whether the courts would benefit from further |

factual development. Ohio Forestry Assn., supra, at 734.

The hardship element of the ripeness test has been applied

in different ways in different circuit courts, with some courts

13

looking for direct and immediate hardship to litigants from

delay in their challenges to agency actions. The D.C. Circuit

here looked only at whether the petitioners faced the mere

“prospect of hardship” in holding petitioners’ claims were

ripe for review, without considering the significance of the

hardship or the likelihood it would occur.

In contrast, the Sixth Circuit has found claims for review

of government action ripe only when claimants demonstrate:

(1) hardship to them if review is postponed until enforcement

of an agency decision; (2) a likelihood that the harm they

allege will come to pass; and (3) facts that are sufficiently

developed for judicial review. Norton v. Ashcroft, 298 F.3d

547, 554-55 (6" Cir. 2002}: Peoples Rights Organization Inc.

v. City of Columbus, 152 F.3d 522, 527 (6" Cir. 1998);

Adult /ideo Assn. v. U.S. Dept. of Justice, 71 F.3d 563, 568

(6" Cir. 1995). These requirements have led district courts

in the Sixth Circuit to conclude litigants present unripe claims

where they do not demonstrate any concrete hardship or direct

impact will ensue from delayed review of the complained of

government action. United States v. Wayne County, MI., 280

F. Supp. 2d 726, 729-30 (E.D. Mich. 2003); National

Association of Minority Contractors, Dayton v. Martinez,

248 F. Supp. 2d 679, 687-89 (S.D. Ohio 2002).

Also, in North American Aviation Properties, Inc. v.

National Transportation Safety Board, 94 F.3d 1029, 1031

(6" Cir. 1996) the Sixth Circuit dealt with a petition seeking

review of informal revisions to agency regulations, but the

impact of these revised rules on the parties were contingent

on future events. Citing Abbott Labs, supra, the Sixth Circuit

found the petition unripe for judicial review because the

changed rules presented no immediate hardship and because

they might “never be applied adversely to petitioner.”

14

Id. at 1031. By contrast, the D.C. Circuit deemed the mere

“prospect” of hardship made the instant dispute ripe absent

any consideration of the probability that adverse affects

would be felt by the petitioners.

The First Circuit, also contrary to the D.C. Circuit,

examines ripeness in terms of direct and immediate hardship

to a claimant if review is withheld, but the First Circuit

also balances hardship against the practical usefulness of

“setting the underlying controversy to rest” and also, unlike

the D.C. Circuit, looks at whether the hardship is “sufficiently

probable.” Riva v. Commonwealth of Massachusetts, 61 F.3d

1003, 1010 (1" Cir. 1995). The First Circuit finds that where

a “‘statute’s operation is inevitable (or nearly so),” and where

it “may impose sufficiently serious collateral injuries,”

sufficient hardship exists to make government action ripe

for judicial review. /d. -

In the public employment context the First Circuit has

found unripe claims for relief based on mere “expectations”

of hiring or promotion, because in those circumstances

claimants cannot demonstrate any probable hardship if review

is delayed until hiring decisions are made. In Massachusetts

Assn. of Afro-American Police Inc. v. Boston Pelice Dep t.

973 F.2d 18, 20-21 (1* Cir. 1992), the claims of non-minority

police officers that they would suffer adverse impact from a

consent decree governing promotions were deemed unripe

for review because:

[T]he [appellants] alleged injury is contingent

upon events that may not occur as anticipated or

may not occur at all. Any injury to [appellants] is

contingent upon [hiring and promotion] from the

1991 lists.

15

{T]he [appellants] can hardly claim hardship since

the injury .. . allege[d] cannot yet be proven and

may never occur. If contingent events ever do

occur, the [appellants] may then ask the district

court to hear its challenge.

Id. at 20-21. In Boston Police the Boston Police Department

had entered into a consent decree in which it agreed not to

award promotions to more than a certain number of officers

without first obtaining consent from the court or the minority

officers organization which had brought the action leading

to the consent decree. In rejecting as unripe certain non-

minority officers’ claims of impairment of their rights to

promotional opportunities, the First Circuit held that no ripe

dispute existed because none of the non-minority police

officers who anticipated being passed over for promotions

due to the consent decree could demonstrate any adverse

affect from the decree’s hiring preferences until job vacancies

opened to be filled. Until vacancies opened, the First Circuit

reasoned, no ripe controversy existed since no officers were

yet being disadvantaged by the decree’s hiring preferences

that would govern promotions in the police department.

Similarly, petitioners’ applications for reemployment

with the FAA through Recruitment Notice 93-01 created no

direct or probable hardship or injury in 1993 when they were

included among the FAA’s new “inventory of applicants” for

future openings that were not yet being filled. Other

contingent events, specifically FAA hiring decisions, had

to occur before anyore could present a dispute ripe for

judicial review by claiming adverse affects from the 1993

Recruitment Notice.

é 16

The reasoning of the First Circuit in Boston Police starkly

conflicts with the D.C. Circuit’s opinion in this case that the

prospect of hardship in prospective FAA employment created

a ripe dispute in 1993 absent predictable job openings that

the petitioners would fill. Absent any present expectation of

employment by an agency, under the First Circuit’s approach

claims concerning agency hiring do not accrue.

The D.C. Circuit’s gossamer treatment of hardship in its

ripeness inquiry is also in conflict with the degree of hardship

in the ripeness inquiries applied in the Fifth and Tenth Circuit

Courts of Appeals, both cf which require claimants to

demonstrate “direct and immediate impact” to their interests

if review is postponed. The Fifth Circuit’s ripeness inquiry

in administrative cases, unlike the D.C. Circuit’s test, requires

a claimant to demonstrate direct and immediate hardship

stemming from the complained of agency action. Jexas Office

of Public Utility Counsel v. F-C.C., 183 F.3d 393, 410 n.11

(5" Cir. 1999); Jobs Training & Services Inc. v. East Texas

Council of Governments, 50 F.3d 1318, 1325 (5" Cir. 1995).

The Fifth Circuit has also held that claimants in

administrative cases must, even when the issues are “purely

legal,” show some hardship that is not speculative in order

to establish ripeness. Central and South West Services, Inc.

v. U.S. E.P.A., 220 F.3d 683, 690 (5" Cir. 2000). The Fifth

Circuit’s standard is clearly at odds with the D.C. Circuit’s

holding that petitioners’ claims were ripe for review in 1993

based on their mere “prospect” of hardship if rehired pursuant

to the 1993 Recruitment Notice, which by its express terms

was far from certain to occur.

The Tenth Circuit Court of Appeals has closely followed

the approach of the Fifth Circuit in administrative cases,

17

requiring as part of its ripeness inquiry that claimants

demonstrate that the agency action “has or will have a direct

and immediate impact upon the plaintiff.” Mobil Exploration

& Producing U.S., Inc. v. Department of Interior, 180 F.3d

1192, 1197 (10" Cir. 1999). In placing such a heavy emphasis

on the showing of direct hardship a claimant must

demonstrate, the Tenth Circuit has frequently held that claims

for review of agency action are not ripe unless petitioning

claimants will suffer significant hardship if review is

withheld. Utah v. U.S. Department of the Interior, 210 F.3d

1193, 1196 (10" Cir. 2000) (citing Ohio Forestry, supra, at

733); HRI Inc. v. E.P.A., 198 F.3d 1224, 1236-37 (10" Cir.

2000).

The Tenth Circuit in Park Lake Resources L.L.C. v. U.S.

Department of Agriculture, 197 F.3d 448, 452-53 (10" Cir.

1999) further defined its hardship inquiry for determining

the ripeness of a challenge to agency action as “tak[ing] into

account financial, operational, and legal consequences

flowing from the agency action” and whether a claimant “felt

any effects” from the agency action. The court further stated:

In this case, although the [agency action] has been

‘formalized,’ Park Lane +71] not feel any effects

of the [action] until the Forest Service....

requires any restrictions upon its [conduct].

Waiting until that occurs preserves and protects

‘the administrative process and meets our

prudential concerns about interfering with tliat

process or deciding hypothetical scenarios.

Id. {citing Toilet Goods Assn., supra, at 163-65). Other courts

also characterize the degree of hardship necessary to

demonstrate ripeness as “direct and immediate hardship . . .

18

entail[ing] more than possible financial loss” if review is

withheld. Western Oil and Gas Assn. v. Sonoma County,

905 F.2d 1287, 1291 (9" Cir. 1990). This approach starkly

contrasts with the D.C. Circuit’s reasoning that the

speculative prospect of financial loss to petitioners and

thousands of other applicants from the 1993 Recruitment

Notice, in the event they were actually rehired someday at

the lower pay grade, made their claims ripe in 1993 absent

any immediate effect on petitioners.

Finally, the Third Circuit Court of Appeals also defines

its ripeness inquiry for review of administrative action to

require a showing of direct and immediate hardship to

claimants if review is withheld. In Peachlum v. City of York,

Pa., 333 F.3d 429, 433-34 (34 Cir. 2003) the court stated it

requires that a party demonstrate it 1s “genuinely aggrieved

so as to avoid expenditure of-judicial resources on matters

which have caused harm to no one.” Jd. (citing Babbitt v.

United Farm Workers National Union, 442 U.S. 28%, 298

(1979)).

Here another circuit court, unlike the D.C. Circuit,

requires a showing of direct and immediate hardship to a

party for a challenge to agency action to be ripe for review.

See also Doe v. County Centre, 242 F.3d 437, 453 (3° Cir.

2001); CEC Energy Co. v. Public Service Commn. of the

Virgin Islands, 891 F.2d 1107, 1110-11 (3% Cir. 1989).

The Third Circuit has also, unlike the D.C. Circuit, followed

the counsel of this Court to avoid wasting judicial resources

on hypothetical controversies involving merely speculative

hardship or injury to the parties seeking judicial intervention.

The D.C. Circuit’s holding here that the mere “prospect

of hardship” is sufficient, assuming fitness, to make a claim

19

ripe for review is therefore in direct conflict with the degree

of hardship required in the ripeness tests applied by other

Circuit Courts of Appeals as well as the standard for ripeness

articulated in the prior holdings of this Court. The D.C.

Circuit’s opinion will cause confusion as to when claims

accrue for review of agency action, and will result in more

litigants bringing cases prematurely. For these reasons, review

is necessary to reaffirm the proper degree of hardship which

makes ripe a claim for review of agency action and to

eliminate this conflict among the circuit courts.

ifI. The D.C. Circuit’s Opinion Is Incorrect As A Matter

Of Law.

The D.C. Cirkuit’s holding that petitioners’ claims were

ripe in 1993 and its affirmance of the dismissal of petitioners’

challenge to agency action as time barred were incorrect

as a matter of law. The D.C. Circuit ignored this Court’s

precedents concerning when a case seeking review of agency

action becomes ripe for review, which dictate that claims

are not ripe absent actual probable hardship or injury.

The D.C. Circuit’s holding that petitioners’ claims were

ripe for review in 1993, when none of the eleven thousand

formerly barred air traffic controllers had any direct hardship

or present injury stemming from Recruitment Notice 93-01,

ignored the ripeness standards set forth repeatedly by this

Court. As discussed, supra, in Point I, this Court has held

that only when the effects of agency action are felt by the

claimants in a concrete way by compelling action or inaction,

and postponing review would cause imminent hardship

or injury, is the challenged agency action ripe for review.

This Court has also repeatedly held that a case is ripe for

review only when claimants can demonstrate direct and

20

immediate hardship will result if review is postponed, and

that fitness alone is not sufficient to create a ripe dispute.

Under the D.C. Circuit’s reasoning that the mere

“prospect of hardship” in 1993 was sufficient to make the

instant matter ripe for review, all eleven thousand formerly

barred air traffic controllers would have had ripe claims for

review of agency action in 1993 based on the pure speculation

that they would, if selected someday for rehire pursuant to

Recruitment Notice 93-01, be adversely affected. Petitioners’

“prospect of hardship” was clearly subject to contingent

events, namely FAA hiring decisions, and did not meet this

Court’s test for ripe controversies since no actual injury could

be predicted in 1993. Due to this clearly erroneous holding

by the D.C. Circuit, this Court must now reaffirm that

claimants, in order to show agency action is ripe for judicial

consideration, must demonstrate direct and immediate

hardship to them if review of the challenged agency action

is postponed.

Examination of actual injury to petitioners in 1993 was

also not done by the D.C. Circuit as part of its ripeness inquiry

and this was incorrect as a matter of law. The D.C. Circuit

erroneously ignored the requirement that petitioners had to

show direct hardship or injury stemming from postponing

review for their claims to have been ripe in 1993, since

without a showing of present injury petitioners could not have

maintained actions in coust in 1993.

This Court has addressed the justiciability of disputes

challenging government action as requiring claimants to

demonstrate, without distinguishing between ripeness and

the other elements of justiciability, “a realistic danger of

sustaining a direct injury as a result of [government action].”

21

Babbitt, supra, at 297-298. Also, in Duke Power Co. v.

Carolina Environmental Study Group, 438 U.S. 59, 81

(1978), this Court addressed ripeness by holding there must

be a showing of injury for claimants to demonstrate they can

maintain an action in court. This Court in Duke Power Co.

characterized its ripeness inquiry as requiring that claimants

demonstrate that delayed relief would “foreclose any relief

from the present injury.” /d. Therefore, absent present injury

and/or direct hardship from an agency action, a claimant has

no real controversy to present for judicial resolution and

hence no ripe dispute to maintain in court. The D.C. Circuit’s

holding that the mere “prospect of hardship” in 1993

demonstrated a ripe dispute is therefore incorrect and contrary

to these precedents.

The D.C. Circuit, by incorrectly holding petitioners’

claims were ripe for review in 1993, also incorrectly held

that their claims seeking review of agency action under

5 U.S.C. § 704 accrued in 1993 and were therefore time

barred. The D.C. Circuit ignored the well settled principle

that statutes of limitations only commence when claimants

can bring and maintain an action in court. The D.C. Circuit

essentially concluded here it was not necessary for petitioners

to show any actual hardship or present injury in 1993 for

their claims to have accrued, merely the prospect of hardship.

As a matter of law this was erroneous given, as frequently

noted by this Court, the need for a demonstration of hardship

and/or injury for claims to be ripe for judicial review.

The statute of limitations for review of agency action

commences “as soon as (but not before) the person

challenging the agency action can institute and maintain a

suit in court.” Spannus v. U.S. Dept. of Justice, 824 F.2d 52,

56 (D.C. Cir. 1987) (citing Crown Coat Co. v. United States,

22

386 U.S. 503, 510-11 (1967)). In Jmpro Products Inc. vy.

Block, 722 F.2d 845, 850 (D.C. Cir. 1983), a case relied on

by the D.C. Circuit in this matter, the D.C. Circuit found a

claim for review of agency action was time barred

after having accrued under 28 U.S.C. § 2401(a) when

“all statutorily required or permitted agency review ha[d]

been exhausted” and, where none was available, when the

agency action “occurred.” Though /mpro Products makes no

mention of hardship or ripeness, it observes that a challenge

to agency action accrues only when the claimant’s right to

go to court is “perfected,” /d. at 850, which can only occur

when a plaintiff’s claim is ripe for judicial review.

The D.C. Circuit has since expressly held that “until [a]

claim ripens, [a] statutory time bar [does] not begin to run”

concerning a Challenge to agency action. Louisiana

Environmental Action Network v. Browner, 87 F.3d 1379,

1385 (D.C. Cir. 1996). Other circuit courts of appeals have

also found that claims must be ripe to commence the running

of statutes of limitations governing challenged agency actions

and, unlike the D.C. Circuit in its reliance on Jmpro Products

here, those courts have properly found claims ripe only when

there “[is] no obvious factual contingency that puts a

particular injury in doubt.” Franks v. Ross, 313 F.3d 184,

195-96 n.13 (4" Cir. 2002).

The D.C. Circuit held here that the prospect of hardship

alone was sufficient for petitioners’ claims to accrue as ripe

in 1993. But as noted above the prospect of hardship is not

the same as the injury which is necessary to begin the running

of the statute of limitations for review of agency action under

28 U.S.C. § 2401(a), which occurs only when agency

regulations or actions are adversely applied to claimants.

Dunn-McCampbell Royalty v. National Park Service, 112

F.3d 1283, 1287-88 (5" Cir. 1997).

23

The D.C. Circuit relied in part here on its decision in

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

a case which found unripe a dispute where delay would

Cause no mjury or hardship to plaintiffs, in concluding

postponement of judicial review was unnecessary in 1993.

But as set forth in Duke Power, supra, at 82, prudential

concerns against postponing relief must be balanced against

some “present” injury to claimants if review is postponed,

and only when there is such injury are claims for review of

agency action ripe for judicial consideration.

The D.C. Circuit, by deciding here that no direct hardship

or injury was required for petitioners’ claims to accrue as

ripe in 1993, therefore erroneously ignored this strong

relation between direct hardship and the existence of present

injury necessary for demonstrating ripeness. The “prospect

of hardship” does not equate to the present injury this Court

has concluded must be demonstrated to make a claim ripe

for judicial review, particularly since courts must only resolve

actual controversies.

In this case the D.C. Circuit has ignored this Court’s

prior dictates on the interrelation between hardship and injury

by concluding that the mere “prospect of hardship” made

this dispute ripe for judicial consideration in 1993 and started

the running of the statute of limitations on petitioners’ claims

in 1993. The D.C. Circuit’s reasoning here overlooks how

any formerly barred controller would have had any direct

hardship or present injury in 1993 to demonstrate a ripe

dispute which could have been maintained in court in 1993.

None of the thousands of formerly barred air traffic

controllers who applied for reinstatement could predict in

1993 who among them would be rehired, or under what other

hiring procedures they might be rehired, so no one could

24

have claimed any predictable hardship or injury in 1993

to demonstrate an actual controversy ripe for judicial

consideration.

Indeed, the few formerly barred air traffic controllers

who were eventually rehired under the 1993 Recruitment

Notice did not face any injury or hardship in 1993 nor could

they predict who or if anyone among them would be rehired

and thereby be adversely affected by the terms of the

Recruitment Notice. Had anyone brought suit in 1993, they

could not have demonstrated hardship or injury from the

Recruitment Notice to show their claims were anything but

hypothetical until FAA hiring decisions were made.

The 1993 Recruitment Notice expressly stated that its

sole purpose was to establish an inventory of applicants for

future openings which, due to a hiring freeze at the FAA,

were not going to occur in the foreseeable future and there

were no guarantees of rehire. The Notice was simply an

invitation to reapply for employment,’ which was declined

by many of the formerly barred controllers and by others

who were rehired by the FAA through other avenues.

Until someone was selected and then rehired under the terms

1. In its Opinion the D.C. Circuit also mistakenly characterized

Recruitment Notice 93-01 as a contractual commitment, stating it

represented “the FAA’s formal offer of employment to hire former

PATCC controllers at the GS-9 level, an offer which the appellants

accepted pursuant to its terms by applying during the 1993 six

week period.” Given that the Notice expressly stated it presented

“no guarantee” of employment to candidates, no consideration

was exchanged, and also hundreds of applicants were never rehired,

these events could not have constituted the neces? y offer and

acceptance to clearly establish “[petitioners’] legal rig . xs well as

the obligations of the FAA.” Appendix A. at 9a, 12a.

25

of the Notice, none of the formerly barred controllers could

claim any direct, probable hardship or present injury to their

interests stemming from the Notice. For any petitioner to

have brought a claim for review of agency action in 1993

based on the terms of Recruitment Notice 93-01, which made

it very clear that there was no guarantee of rehire and that no

applicant should expect to return to FAA employment, would

have been speculative at best. Such speculative claims

do not demonstrate actual controversies ripe for judicial

consideration.

CONCLUSION

For the reasons set forth herein and for such other reasons

as this Court deems just and appropriate, this petition for a

Writ of Certiorari should be granted.

Respectfully submitted,

JoeL C. GLANSTEIN

Of Counsel: Counsel of Record

JONATHAN R., SIEGEL Davip M. GLANSTEIN

Professor of Law O’DONNELL, SCHWARTZ,

GEORGE WASHINGTON

University Law SCHOOL

2000 H. Street, NW

Washington, D.C. 20052

(202) 994-7453

GLANSTEIN & Litty, LLP

Attorneys for Petitioners

60 East 42nd Street

New York, NY 10165

(212) 370-5100

APPENDIX

la

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT DECIDED JANUARY 13, 2004

UNITED STATES COURT OF APPEALS

For The District of Columbia Circuit

Argued October 10, 2003 Decided January 13, 2004

No. 02-5304

RoBERT HARRIS, £T AL.,

APPELLANTS

Mo

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)

Before: HENDERSON, TATEL and Roserts, 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

Professional Air Traffic Controllers Organization (PATCO)

2a

Appendix A

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,

claiming that the FAA’s decision ts 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.

3a

Appendix A

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 11.006

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. Controller

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,'

by the Notice it was “establishing an inventory of applicants

who have reinstatement and transfer eligibility.” Jd.

According to the Notice, applicants would be initially hired

at the GS-9 grade level, with a corresponding salary of

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

controliers 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.

4a

Appendix A

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 controiler’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 certification requirements for the next higher

grade and applicable time-in-grade requirements.” Jd.

The appellants are 172 current and retired former PATCO

controilers who were hired by the FAA between 1995 and

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

brought suit under the APA “to challenge as arbitrary and

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

highest pay grades and performance steps upon their

reemployment 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 grade’ - and at the appropriate

accompanying salary - and not at the GS-9 level and at a

salary within its range.

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. Jd. The appellants do not contest the fact that they

applied for employment at the FAA pursuent 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.

5a

Appendix A

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’ claira

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

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 v ere

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.

6a

Appendix A

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. /d.; 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

agency 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

satisfied for agency action to be “final”: First, the

action must mark the “consummation” of the

agency's decisionmaking process, Chicago &

Southern Air Lines, 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

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).

7a

Appendix A

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

Assocs. (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

publication 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 occurred pursuant to the Notice, it would be at the

8a

Appendix A

GS-9 grade level and at a corresponding salary.’ That

declaration constitutes 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 penultimate, pre-termination salary. J.A. 60.

Furthermore, the fact that some former PATCO controllers

5. Indeed, 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 training

and/or certification requirements for the next higher grade.” Jd.

9a

Appendix A

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

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 nights 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 /993 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).

10a

Appendix A

The appellants alternatively contend that, even if the

Notice 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

ripeness argument rejected). Nevertheless, we believe that

the appeliants’ 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

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 consideration 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 crystallized and because they had not yet

lla

Appendix A

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 . . . 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. Vv.

Browner, 215 F.3d 45, 49 (D.C. Cir. 2000) (case ripe for

judicial review where “questions presented are purely legal”

and “{nJothing . . . 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. /d.

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 postponing 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 petitioner failed

to show that postponing review would cause it 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 further

administrative action; and (3) whether the courts would

benefit from further factual development of the issues

12a

Appendix A

presented’’). Accordingly, because the Notice sufficiently

affected 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 Minnesot« 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.” /d. at 452

(emphasis added) (internal quotation omitted).° 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 -

notwithstanding their pocketbooks did not feel it until years

later-constitute final agency action for the purpose of the

appellants’ 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.” Jd. at 452 (citing

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

Reka ai one i ee OS eS er Sak poe ae 6S

13a

Appendix A

For the foregoing reasons, the judgment of the district

court is affirmed.’

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),

“ujnlike an ordinary statute of limitations, . . . is a jurisdictional

condition 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 /rwin

v. Department of Veterans 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 Dept of Justice, 333 F.3d

273, 277 (D.C. Cir. 2003) (rejecting jurisdictional nature of Privacy

Act statute of limitations in light of Jrwin); see also Zipes v. Trans

World Airlines, Inc., 455 U.S. 385, 393 (1982) (“filing a timely charge

of discrimination .. . is not a jurisdictional prerequisite to suit in

federal court, but a requirement that, like a statute of limitations, 1s

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).

l4a

APPENDIX B — MEMORANDUM OPINION AND

ORDER OF THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DATED AND FILED AUGUST 29, 2002

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 01-0503 (RMU)

Document Nos.: 25, 28

ROBERT HARRIS et al.,

Plaintiffs,

V.

FEDERAL AVIATION ADMINISTRATION,

Defendant.

MEMORANDUM OPINION

GRANTING THE DEFENDANT’S MOTION TO DISsMIss;

DENYING AS Moot THE PLAINTIFFS’ CROSS-MOTION FOR

ADDITIONS TO THE ADMINISTRATIVE RECORD

I. INTRODUCTION

On August 9, 1981, President Reagan fired more than

11,000 air traffic controllers for participation in an illegal

strike and banned the Federal Aviation Administration

15a

Appendix B

(“the FAA” or “the defendant”)' from rehiring them.

This case deals with the FAA’s implementation of President

Clinton’s August 12, 1993 directive to repeal this historic

ban. The plaintiffs are certified professional air traffic

controllers whom the FAA fired in 1981 and then rehired

pursuant to President Clinton’s directive. The plaintiffs argue

that the FAA’s decisien to rehire all fired controllers at the

GS-9 pay grade level violates the Administrative Procedure

Act (“APA”), 5 U.S.C. § 701 et seq.

This matter is currently before the court on the

defendant’s motion to dismiss for lack of subject-matter

jurisdiction or, in the alternative, for summary judgment, and

on the plaintiffs’ cross-motion for additions to the

administrative record. The defendant argues that the statute

of limitations bars the plaintiffs claim. For the reasons that

follow, the court grants the defendant’s motion to dismiss,

determining that the court lacks subject-matter jurisdiction,

and denies as moot the plaintiffs’ cross-motion.

Il. BACKGROUND

In 1981, President Reagan banned from FAA

employment all air traffic controllers who were members of

the Professional Air Traffic Controllers Organization

1. The plaintiffs assert that they properly amended their

complaint to add the Department of Transportation (“DOT”) as a

defendant. Pls.’ Opp’n and Cross-Motion for Additions to the Amin.

R. (“Pls.’s Opp’n”) at 2. Though the plaintiffs’ motion to add parties

demonstrates an intent to add a defendant, the First Amended

Complaint neither lists nor describes the DOT as a defendant.

Pls. Mot. to Add Pls. and Def.; First Am. Compl. (“Compl.”) at 16

(case caption) & § 3 (description of parties).

l6a

Appendix B

(“PATCO”) and who were found to have participated in a

labor strike. Compl. at 18. Twelve years later, on August 12,

1993, President Clinton issued a directive that rescinded the

ban. /d. at 18. The FAA subsequently published Recruitment

Notice 93-01, offering to rehire the controllers at the

GS-2152-9 (“GS-9”) pay grade level. A.R. at 14-16 (press

releases regarding the recruitment notice), 26 (Recruitment

Notice 93-01).? According to the plaintiffs, the FAA re-hired

them, beginning in January 1995, at the GS-9 level, despite

the fact that many of the controllers had pay grades higher

than GS 9 when the FAA dismissed them in 1981. Jd. at 20.

On March 8, 2001, the plaintiffs filed a complaint

alleging that the defendant acted arbitrarily, capriciously, and

contrary to FAA policy by hiring the reinstated controllers at

the GS-9 level. Jd. at 20. The defendant moves to dismiss

for lack of subject-matter jurisdiction or, in the alternative,

for summary judgment. Def.’s Mot. to Dismiss or for Summ.

J. (“Def.’s Mot. to Dismiss”) at 1. The defendant argues that

the issuance of the recruitment notice in 1993 is the final

agency action that triggered the six- year statute of limitations

for the plaintiffs’ claim and that as a result, the statute of

limitations expired in 1999. Def.’s Mot. to Dismiss at 15.

In contrast, the plaintiffs contend that the actual rehiring at

the GS-9 level, which began in 1995, constitutes the

administrative action that triggered the statute ef limitations.

Pls.’ Opp’n at 2. The plaintiffs also move to supplement the

administrative record. /d. at 1. Because the statute of

limitations bars the plaintiffs’ claim, the court grants the

defendant’s motion to dismiss for lack of subject-matter

2. Though the recruitment notice is not dated, it lists an opening

date of September 1, 1993. A.R. at 26. :

17a

Appendix B

jurisdiction. Consequently, the court has no jurisdiction to

address the defendant’s motion for summary judgment or the

plaintiffs’ cross-motion. ”

Ill. ANALYSIS

A. Legal Standard for a Motion to Dismiss

On a motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(1), the plaintiff bears the burden of

establishing that the court has jurisdiction. Dist. of Columbia

Ret. Bd. v. United States, 657 F. Supp. 428, 431 (D.D.C.

1987). In evaluating whether subject-matter jurisdiction

exists, the court must accept all of the complaint’s well-pled

factual allegations as true and draw all reasonable inferences

in the plaintiff’s favor. Scheuer v. Rhodes, 416 U.S. 232, 236

(1974), overruled on other grounds by Harlow v. F itzgerald,

457 U.S. 800 (1982). The court need not, however, accept

inferences unsupported by the facts-alleged or legal

conclusions that are cast as factual allegations. E.g., Lawrence

v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). -

Moreover, the court need not limit itself to the allegations

of the complaint. Hohri v. United States. 782 F.2d 227, 241

(D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64

(1987). Rather, the court may consider such materials outside

the pleadings as it deems appropriate to determine whether

it has jurisdiction over the case. Herbert v. Nat'l Acad. of

Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).

18a

Appendix B

B. The Court Grants the Defendant’s Motion to Dismiss

Because the Statute of Limitations Bars the

Plaintiffs’ Claim

The plaintiffs address the statute of limitations issue by

discussing both when an agency action is final, and when an

action is ripe for review. After considering both approaches

to this statute of limitations issue, the court concludes that

the plaintiffs’ claim accrued and became ripe in 1993 when

the FAA issued the Recruitment Notice. Jmpro Prods., Inc.,

v. Block, 722 F.2d 845, 850 (D.C. Cir. 1983). Thus, the six-

year statute of limitations bars the plaintiffs’ claim.

1. The 1993 Recruitment Notice Is a Final Agency

Action Pursuant to the APA

A plaintiffs must bring an APA claim within six years

after the claim first accrues. 28 U.S.C. § 2401; Jmpro Prods.,

722 F.2d at 850. Pursuant to the APA, a cause of action first

accrues when a plaintiff may challenge a final agency action

in court. 5 U.S.C. § 704; Barrick Goldstrike Mines, Inc. v.

Browner, 215 F.3d 45, 48 (D.C. Cir. 2000). An agency action

includes “an agency rule, order, license, sanction, relief, or

the equivalent or denial thereof, or failure to act.” 5 U.S.C. §

551(13). Furthermore, an agency rule “means the whole or a

part of an agency statement of general or particular

applicability and future effect designed to implement,

interpret, or prescribe law or policy ... of an agency and

includes the approval or prescription for the future of rates,

[or] wages....” 5 U.S.C. § 551(4) (emphasis added).

Sao

19a

Appendix B

The D.C. Circuit has defined two conditions that an

agency action must meet to be final: “First, the action must

mark the ‘consummation’ of the agency’s decision-making

process .. . [and] second, the action must be one by which

‘rights or obligations have been determined,’ or from which

‘legal consequences will flow.’ ”’ Barrick Goldstrike Mines,

215 F.3d at 48 (citations omitted). Furthermore, the D.C.

Circuit has explained that an agency action that merely

reiterates or affirms an earlier agency decision and does not

affect the rights or alter the status quo of the complaining

party is not considered a “final agency action,” and, as such,

does not trigger the statute of limitations under the APA.

Impro Prods., 722 F.2d at 850; Kennecott Utah Copper v.

Dep t of Interior, 88 F.3d 1191, 1213 (D.C. Cir. 1996). For

example, in Jmpro Products, the court held that a letter,

published by the U.S. Department of Agriculture (“USDA”)

in response to an inquiry from Impro, that affirmed the

Department’s earlier action—a decision to disseminate test

results by publishing them in a journal—did not constitute a

“final agency action.” Jmpro Prods., 722 F.2d at 850. Rather,

the earlier decision to publish the results was the final action.

Id.

3. When an administrative remedy is mandatory, a cause of

action does not accrue until the party has exhausted all administrative

remedies. Spannaus v. Dept of Justice, 824 F.2d 52, 57 (D.C. Cir.

1987). The plaintiffs argue that no administrative remedies were

available to the plaintiffs, while the defendant argues that such -

remedies were available and the plaintiffs failed to exhaust them.

Pls.’ Opp’n at 7; Def.’s Mot. to Dismiss at 19. Because the court

lacks subject-matter jurisdiction over this case, it does not reach the

administrative remedy issue.

20a

Appendix B

In the present case, the Recruitment Notice issued by the

defendant constitutes the final agency action that triggered the

statute of limitations period. A.R. at 26-28; Barrick Goldstrike

Mines, 215 F.3d at 48; 5 U.S.C. § 551(4). The Notice reads in

relevant part:

SERIES/GRADE/SALARY: GS-2152-09 ($27,789

$31,123 per annum). Salary will be within the above

range, based on the applicant’s previous Federal pay

rate and agency pay-setting guidelines.

AREA OF CONSIDERATION: Reinstatement and —

trarisfer eligible applicants who were separated from

the Federal Aviation Administration as a result of

the Professional Air Traffic Control Organization

(PATCO) job action of 1981.

A.R. at 26. The Notice interprets the rehiring policy directed by

the President,‘ demonstrates the FAA’s decision to rehire the

former controllers at the GS-9 salary level, and implements

this final decision. Jd. at 1, 26-28. Consequently, the Notice

constitutes a final agency action. 5 U.S.C. § 551(4); Barrick

Goldstrike Mines, 215 F.3d at 48.

The plaintiffs argue that the act of rehiring the plaintiffs

represents the accrual of the final agency action. Pls.’ Opp’n

at 6. To the contrary, the separate action of rehiring controllers

at the GS-9 level constitutes only an affirmation of this policy

4. President Clinton’s memorandum of August 12, 1993 does

not mention pay grades. A.R. at 1. It only states that the formerly

banned air traffic controllers “will be eligible to apply for employment

with the FAA.” Jd.

a i tin

2la

Appendix B

similar to the affirmation in Jmpro Products. Impro Prods.,

722 F.2d at 850. Just as the USDA’s letter affirming an earlier

final action did not create a new final action in /mpro

Products, the FAA’s implementation of its policy by hiring

the plaintiffs does not create a new agency action. /d.

The 1993 Recruitment Notice was an offer of employment

at GS-9. Pls.’ Opp’n at 6. The hiring of the plaintiffs merely

represents agency officials carrying out the offer set forth in

the 1993 Notice. When or whether the plaintiffs were rehired

is irrelevant to this agency review action, because the

plaintiffs are challenging the FAA’s 1993 decision to rehire

them at GS-9 and not the FAA’s specific decision to rehire

each individual. In sum, the plaintiffs’ argument that their

action accrued at the time of the rehiring fails, the statute of

limitations bars their claim, and, thus, the court lacks

jurisdiction over this case. Barrick Goldstrike Mines, 215

F.3d at 48.

2. The Plaintiffs’ Claims Became Ripe when the

FAA Issued the 1993 Recruitment Notice

Though the plaintiffs concede that the 1993 Recruitment

Notice was an offer of employment, the plaintiffs argue that

their claim became ripe for judicial review only once they

actually were rehired by the FAA. Pls.’ Opp’n at 6 (citing

Abbott Labs. v. Gardner, 387 U.S. 136, 152 (1967), abrogated

by Califano v. Sanders, 430 U.S. 99 (1977)). In Abbott

Laboratories, which the plaintiffs rely on,° the Court actually

held that an APA challenge to a policy issued by the

Commissioner of Food and Drugs was ripe for adjudication

5. The plaintiffs and defendants rely on many the same cases

but interpret the cases differently.

22a

Appendix B

because the policy “purport[ed] to give an authoritative

interpretation of a statutory provision,” even .hough the

Commissioner had not yet enforced the policy. /d. Likewise,

in another case that the plaintiffs cite, the First Circuit

recently relied in part on this ruling in Abbott Laboratories

and concluded that an FAA notice that interpreted a regulation

regarding pilot and crew rest periods and promised

enforcement of the regulation was ripe for review at the time

the notice was issued, rather than at a point when the FAA

actually enforced the regulation, because its directive was

clear. Aviators for Safe and Fairer Regulation, Inc. v. Fed.

Aviation Admin., 221 F.3d 222, 225-26 (1st Cir. 2000).

Accordingly, to determine whether an agency action is ripe

for judicial review, courts must consider whether the agency

frames a rule or order in clear terms or in “terms so general

that only its application to specific facts (usually in an

enforcement proceeding) would permit the court to make a

reasoned judgment.” /d. at 226.

In the present case, the ruling framed in Recruitment

Notice, that the FAA would rehire PATCO controllers at the

GS-9 level, presents terms specific enough that a court could

have made a reasoned judgment about the ruling had the

plaintiffs challenged the policy before the FAA actually

rehired any controllers. /d. at 225-26; A.R. at 26. Like the

rest period notice in Aviators, the Recruitment Notice is a

final action, and therefore ripe, once issued, not once

implemented or enforced. /d. Therefore, the plaintiffs’ claim

became ripe when the FAA published the 1993 Recruitment

Notice.

23a

Appendix B

In conclusion, because the FAA issued the Recruitment

Notice in 1993, the statute of limitations expired six

years later, in 1999. A.R. at 14-16, 26; 28 U.S.C. § 2401.

The plaintiffs did not commence this action until March 8,

2001. Thus, the court lacks subject-matter jurisdiction over

the plaintiffs’ claim and dismisses this action. Dist. of

Columbia Ret. Bd., 657 F. Supp. at 431.

IV. CONCLUSION

For all these reasons, the court grants the defendant’s

motion to dismiss and denies as moot the plaintiffs’ cross-

motion for additions to the administrative record. An order

directing the parties in a manner consistent with this

Memorandum Opinion is separately and contemporaneously

issued this 29 day of August 2002.

os

s/ Ricardo M. Urbina

Ricardo M. Urbina

United States District Judge

24a

Appendix B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 01-0503

Document Nos.: 25, 28

ROBERT HARRIS et al.,

Plaintiffs,

V.

FEDERAL AVIATION ADMINISTRATION,

Defendant.

ORDER

GRANTING THE DEFENDANT’S MOTION TO DIsMISss;

DENYING AS Moot THE PLAINTIFFS’ CRoss-MOTION FOR

ADDITIONS TO THE ADMINISTRATIVE RECORD

For the reasons stated in this court’s Memorandum

Opinion separately and contemporaneously issued this 29

day of August 2002, it is

ORDERED that the defendant’s motion to dismiss is

GRANTED, and it is

25a

Appendix B

FURTHER ORDERED that the plaintiffs’ cross-motion

for additions to the administrative record is DENIED as

moot.

SO ORDERED.

s/ Ricardo M. Urbina

Ricardo M. Urbina

United States District Judge