Opposition Brief — Harris v. Federal Aviation Administration

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No. 03-1418

Jn the Supreme Court of the Quited States

ROBERT HARRIS, ET AL., PETITIONERS

FEDERAL AVIATION ADMINISTRATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUTT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

PAUL D. CLEMENT

Acting Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

WILLIAM KANTER

CHRISTINE N. KOHL

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether petitioners, who were dismissed from their

positions as Federal Aviation Administration (FAA) air

traffic controllers in 1981, and who were re-hired by the

FAA between 1995 and 1998, are entitled to sue in

district court under the Administrative Procedure Act

to challenge the FAA’s decision to re-employ them at

grade level GS-9 rather than at a higher grade level.

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) cocccccccccccccoee. 5

Barnhart vy. Devine, 771 F.2d 1515 (D.C. Cir. :

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ig Bay Area Laundry & Dry ( Toanin a Pension Trust

Fund v. Ferbar Corp., 522 U.S. 192 (1997) v.ccccccseseeseeee. 10

FTC y. Standard Oil Co., 449 U.S. 232 (L980) coccccccccccecoeee i)

Hinkel v. England, 349 F.3d 162 (3d Cir. 2008) voces. 7

Houlihan v. OPM, 909 F.2d 383 (9th Cir. 1990) .....0.000.... 7

Lindahl v. OPM, 470 U.S. 768 (1985) ceecccccccsssssssssscecesesecseee 6

Reno vy. Catholic Social Servs., 509 U.S. 43 (1993) ceccce.e. 11

Stella v. Mineta, 284 F.3d 135 (D.C. Cir. 2002) 0.00.00... i)

Toilet Goods Ass'n v. Gardner, 387 U.S. 158

ae esate piadabiialasiniaisiasedeidsniaerssias i)

Towers vy. Horner, 791 F.2d 1244 (5th Cir. 1986) .....0...... 7

United States v. Pausto. 484 U.S. 439 (1988) ...........0..0000. 6

Statutes and regulation:

Administrative Procedure Act, 5 U.S.C. 704. cecccccccscscssssceses 3,4

Civil Service Reform Act of 1978, Pub. L. No.

I cs iatsahebenenuvesoneoios 3

Classification Act of 1949, ch. 782, 63 Stat. 954 (5 6

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RATE ces 7

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Statutes and regulation—Continued:

Department of Transportation and Related Agencies

Appropriations Act of 1996, Pub. L. No. 104-50,

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Federal Aviation Reauthorization Act of 1996,

Pub. L. No. 104-264, § 253, 110 Stat. 3237 ........sessssseeeees

Wendell H. Ford Aviation Investment and Reform

Act for the 21st Century, Pub. L. No. 106-181,

Tit. II], 114 Stat. 115:

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Miscellaneous:

<http://www.faa.gov/ahr/policy/PMS/personel.htm> ........

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Jn the Supreme Court of the Anited States

No. 08-1418

ROBERT HARRIS, ET AL., PETITIONERS

Vv.

FEDERAL AVIATION ADMINISTRATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-13a)

is reported at 353 F.3d 1006. The opinion of the district

court (Pet. App. 14a-23a) is reported at 215 F. Supp. 2d

209.

JURISDICTION

The judgment of the court of appeals was entered on

January 13, 2004. The petition for a writ of certiorari

was filed on April 8, 2004. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. In August 1981, President Reagan fired more than

11,000 air traffic controllers because of their participa-

tion in an illegal strike organized by the Professional

(1)

Air Traffic Controllers Organization (PATCO). As a

result of that unlawful job action, the controllers were

barred from future employment with respondent

Federal Aviation Administration (FAA). Pursuant to a

subsequent directive issued by the Office of Personnel

Management (OPM), the discharged employees were

also barred from air traffic controller and related posi-

tions at specified Department of Defense facilities. In

August 1993, President Clinton issued a directive lifting

the lifetime ban on FAA employment. Later that

month, the FAA implemented that directive by issuing

Recruitment Notice 93-01, which invited controllers

who were fired in 1981 as a result of the illegal job

action to apply for air traffic controller positions. Pet.

App. la-8a & n.1, 14a-16a & n.2; C.A. App. 25-27, 53-55.

Recruitment Notice 93-01 established an opening

date of September 1, 1993, and a closing date of October

15, 1998, for applications pursuant to the Notice. C.A.

App. 53. The Notice explained that “(t]he FAA is

establishing an inventory of applicants who have rein-

statement and transfer eligibility” and that “[e]ligible

candidates will be ranked as vacancies occur on the

basis of job-related criteria.” Ibid. The Notice stated

that the salary of any applicants rehired “will be

within” the GS-9 range (at that time $27,789-$36,123

per year), and that promotion above that level “will be

based upon successful completion of training and/or

certification requirements for the next higher grade

and applicable time-in-grade requirements.” /bid. The

GS-9 level was chosen because 12 years had elapsed

since the controllers had been fired, and any applicants

who were re-hired would need “training to learn new

air traffic control systems.” Pet. App. 4a. The

Recruitment Notice cautioned that ‘{blased on pro-

jected vacancies, the FAA expects to fill only a small

number of [air traffic controller] positions from a

variety of sources over the next few years. As a result,

employment opportunities are limited; there is no

guarantee that candidates will be referred or selected.”

C.A. App. 53.

2. Petitioners were among the air traffic controllers

fired in 1981. Pet. App. 2a. They applied for re-employ-

ment in 1993 pursuant to Recruitment Notice 93-01 and

were re-hired as FAA air traffic controllers at the GS-9

level beginning in January 1995. Id. at 4a & n.2, 16a.

On March 8, 2001, petitioners filed suit in federal

district court under the Administrative Procedure Act

(APA), 5 U.S.C. 704, claiming that the FAA’s decision

to re-hire PATCO controllers at the GS-9 level was

arbitrary and capricious, and that such individuals

should have beet re-hired at their pre-termination

grade levels. Pet. App. 4a, 16a. The complaint, which

was subsequently amended to add additional parties,

sought declaratory relief and an order directing the

FAA to adjust petitioners’ pay grades. See First

Amended Comp. 22-23 (filed Oct. 18, 2001).

The government moved to dismiss the complaint on

several alternative grounds. See Pet. App. 5a (listing

bases for dismissal asserted by the government in the

court of appeals). Inter alia, the government argued

that petitioners’ claims were barred by the six-year

statute of limitations in 28 U.S.C. 2401(a), and that

petitioners had failed to utilize the exclusive remedies

available under the comprehensive scheme governing

federal personnel actions set forth in the Civil Service

Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92

Stat. 1111. The district court granted the government’s

motion to dismiss, ruling that the claims were time-

barred because petitioners had filed suit more than six

years after their cause of action accrued. The court did

not address the other grounds for dismissal asserted by

the government. Pet. App. 14a-23a.

In holding that petitioners’ claims were untimely

filed, the district court found that Recruitment Notice

93-01 “constitutes the final agency action that triggered

the statute of limitations period.” Pet. App. 20a. The

court rejected petitioners’ contention “that the act of

rehiring the [petitioners] represents the accrual of the

final agency action.” Jbid. The court stated that

“[w]hen or whether the [petitioners] were rehired is

irrelevant to this agency review action, because the

[petitioners] are challenging the FAA’s 1993 decision to

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

to rehire each individual.” /d. at 21a.

The district court also rejected petitioners’ conten-

tion “that their claim became ripe for judicial review

only once they actually were rehired by the FAA.” Pet.

App. 2la. The court stated that “the ruling framed in

Recruitment Notice [93-01], 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 [petitioners] chal-

lenged the policy before the FAA actually rehired any

controllers.” Jd. at 22a. The court held on that ground

that petitioners’ claims “became ripe when the FAA

published the 1993 Recruitment Notice.” /bid.

3. The court of appeals affirmed. Pet. App. la-13a.

The court of appeals held that Recruitment Notice

93-01 was a reviewable “final agency action” within the

meaning of 5 U.S.C. 704. Pet. App. 6a-9a. The court

explained that, although Recruitment Notice 93-01

“qualified the date, if ever, on which a former [air

traffic] controller might be hired,” the Notice “stated

categorically that, when such hiring occurred pursuant

to the Notice, it would be at the GS-9 grade level and at

a corresponding salary.” /d. at 7a-8a. In the court’s

view, “(t]he hiring of the [petitioners] from 1995 to 1998

at the GS-9 level simply implemented the FAA’s de-

cision which was made in 1993 and spelled out in the

- Notice.” Jd. at 9a.

The court of appeals also held that an APA challenge

to the pay-grade determination set forth in Recruit-

ment Notice 93-01 would have been ripe for immediate

judicial review when the Notice was issued in 1993.

Pet. App. 1Ga-12a. The court observed that “[t]he ripe-

ness 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.” Jd. at 10a

(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149

(1967)). The court found that an immediate challenge to

the Notice would have been fit for judicial review

because petitioners’ claim of arbitrary and capricious

agency conduct raised a “purely legal question.” Jd. at

lla. The court rejected petitioners’ contention (see id.

at 10a-lla) that, because they suffered no “direct

hardship” from the agency’s pay-grade determination

until they were re-hired by the FAA and their own

salaries were calculated, a challenge to the Notice

would not have been ripe at the time of its issuance in

1993. The court stated that “(t]he ‘prospect’ of hardship

is sufficient to make a claim fit for judicial review.” Jd.

at lla. The court of appeals concluded that “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 [petitioners’]

claim was ripe in 1993.” Jd. at 12a.

ARGUMENT

Petitioners contend (Pet. 6-25) that the court of

appeals erred in holding that an immediate challenge to

the pay-grade determination set forth in Recruitment

Notice 93-01 would have been ripe for judicial review.

Further review of that ripeness question is not war-

ranted because the Court’s resolution of the issue

would not affect the outcome of petitioners’ suit.

Whether the suit is regarded as a challenge to FAA

decisions concerning the salaries to be paid to individual

agency employees, or as a challenge to the general

agency policy determination reflected in the 1993

Notice, petitioners’ complaint was properly dismissed.

1. If petitioners’ suit is treated as a challenge to

individual FAA classification and salary determina-

tions, their claims are subject to the exclusive remedial

scheme established by the CSRA. Enacted in 1978, the

CSRA “comprehensively overhauled the civil service

system.” Lindahl v. OPM, 470 U.S. 768, 773 (1985). “A

leading purpose of the CSRA was to replace the

haphazard arrangements for administrative and judicial

review of personnel action” that had existed under

prior law. United States v. Fausto, 484 U.S. 439, 444

(1988). The Act “replaced the patchwork system with

an integrated scheme of administrative and judicial

review, designed to balance the legitimate interests of

the various categories of federal employees with the

needs of sound and efficient administration.” Id. at 445.

If the CSRA itself does not authorize judicial re: iew of

a particular personnel decision, the appropriate con-

clusion is that review of the decision is precluded. See

id. at 448-449.

A contention that a federal agency has acted arbi-

trarily and capriciously in determining the GS level for

a particular position or employee is properly treated as

a “classification” dispute. See Classification Act of

1949, ch. 782, 63 Stat. 954, as amended, 5 U.S.C. 5101 et

seq. Neither the CSRA nor any other federal statute

specifically authorizes judicial review of an agency’s

classification decisions.’

However, to the extent that a classification deter-

mination is associated with or is alleged to constitute a

“prohibited personnel practice,” 5 U.S.C. 2302(a)(1), the

CSRA allows the affected employee to file a complaint

with the Office of Special Counsel (OSC). 5 U.S.C.

1214(a)(1)(A).*” The OSC may pursue the matter before

the Merit Systems Protection Board (MSPB or Board),

5 U.S.C. 1214(b)(2)(C), and, if the employee is adversely

affected by the MSPB decision, he may seek judicial

review in the United States Court of Appeals for the

Federal Circuit. 5 U.S.C. 1214(c), 7703(b); 28 U.S.C.

1295(a)(9). With the exception of certain cases in-

volving alleged agency reprisals for “whistleblowing”

' As a general matter, an employee affected by an agency’s

classification decision “may request at any time” that OPM review

that decision. 5 U.S.C. 5112(b); see 5 C.F.R. 511.603(a)(1). The

Classification Act’s definition of “agency” encompasses the FAA.

See 5 U.S.C. 5102. Under 49 U.S.C. 40122(¢)(2), however, the

F'AA’s personnel management system is subject only to specified

portions of Title 5, which do not include the provisions of the

Classification Act. See p. 8, infra. In any event, the petitioners in

this case did not invoke Section 5112(b) or seek OPM review of the

FAA’s classification decisions.

* The courts of appeals have frequently treated classification

disputes as raising allegations of prohibited personnel practices.

See, e.g., Hinkel v. England, 349 F.3d 162, 165 (3d Cir. 2003)

(“Courts that have addressed the interplay between the Classifi-

cation Act and the CSRA have concluded that classifications

running afoul of the Classification Act qualify as ‘prohibited per-

sonnel actions’ and therefore are subject to” OSC review under the

CSRA.); Houlihan v. OPM, 909 F.2d 383, 384 (9th Cir. 1990) (“A

misclassification of a federal employment position is a ‘prohibited

personnel practice’ as that term is defined in the CSRA.”); Towers

v. Horner, 791 F.2d 1244, 1247 (5th Cir. 1986); Barnhart v. Devine,

771 F.2d 1515, 1518 n.3, 1523 & n.12 (D.C. Cir. 1985).

activities, see 5 U.S.C. 1214(a)(3), 1221, 2302(b)(8), the

employee-has no further administrative or judicial re-

course if the OSC declines to pursue the complaint

before the MSPB. See 5 U.S.C. 1214(a)(2)(A).

Both now and at the time when petitioners’ complaint

was filed, the FAA’s personnel practices have been

subject to a hybrid legal regime that combines features

of the CSRA with a Personnel Management System de-

~ vised by the FAA itself pursuant to statutory authori-

zation. See 49 U.S.C. 40122. Under that regime, the

FAA is exempt from much of Title 5 but is subject to

the CSRA provisions that govern the filing of com-

plaints with the OSC and subsequent review by

the MSPB. See 49 U.S.C. 40122(g)(2)(H). The FAA

Personnel Management System (see, e.g., <http://www.

faa.gov/ahr/policy/PMS/personel.htm>) contains a list of

“prohibited personnel practices” that largely tracks the

list set forth in 5 U.S.C. 2302(b). Thus, as with workers

in other federal agencies, an FAA employee who is

adversely affected by a personnel practice prohibited

by the FAA Personnel Management System may file a

claim with the OSC, which may in turn seek review in

the MSPB. Ifthe OSC declines to file a claim with the

Board, judicial review is not available; if the OSC does

file such a claim, the employee may seek review of the

MSPB’s decision in the Federal Circuit.”

% Through legislation enacted in 1995, 1996, and 2000, Congress

revised federal personnel law as it applies to FAA employees. See

Department of Transportation and Related Agencies Appropria-

tions Act of 1996, Pub. L. No. 104-50, § 347, 109 Stat. 486; Federal

Aviation Reauthorization Act of 1996, Pub. L. No. 104-264, § 253,

110 Stat. 3237; Wendell H. Ford Aviation Investment and Reform

Act for the 21st Century, Pub. L. No. 106-181, Tit. III, §§ 307(a)

and (d), 308, 114 Stat. 124, 125, 126. As a result of those statutory

revisions, the CSRA provisions governing OSC and MSPB review

In the instant case, petitioners did not file a com-

plaint with the OSC. Even if petitioners had exhausted

their OSC remedies, moreover, the judicial review that

is potentially available to address a “prohibited per-

sonnel practice” is by way of a petition for review in the

Federal Circuit (if the OSC pursues a claim before the

MSPB and the employee is adversely affected by the

Board’s decision), not through an APA action filed in

district court. Thus, if this suit is properly regarded as

a challenge to FAA classification decisions concerning

individual re-employed air traffic controllers, peti-

tioners’ APA claims are precluded by the exclusive

remedial scheme established by the CSRA.

That is so, moreover, even if the gravamen of peti-

tioners’ chailenge is that the individual classification

decisions are invalid because they were made on the

basis of an arbitrary or unreasonable general rule.

Where case-specific application of an agency rule is a

prerequisite to the assertion of a ripe, justiciable claim,

any judicial review occurs under the procedural regime

that governs challenges to the relevant category of

individualized agency determinations. See, e.g., Toilet

Goods Ass’n v. Gardner, 387 U.S. 158, 165 & n.3 (1967);

ef. FTC v. Standard Oil Co., 449 U.S. 232, 245 (1980).

Thus, if petitioners’ challenge to the general pay-grade

determination reflected in Recruitment Notice 93-01

were inapplicable to the FAA for a period of time between 1996

and 2000. See Stella v. Mineta, 284 F.3d 135, 142-143 (D.C. Cir.

2002). The prior unavailability of OSC and MSPB review, how-

ever, cannot reasonably be thought to provide a basis for peti-

tioners’ APA action filed in March 2001. That is particularly clear

in light of the fact that the statutorily defined objective of the

FAA’s Personnel Management System is to “provide for greater

flexibility in the hiring, training, compensation, and location of

personnel.” 49 U.S.C. 40122(g)(1).

became ripe only through its application to individual

FAA re-hirees, petitioners cannot avoid the CSRA’s

restrictions on challenges to agency classification de-

cisions.

2. The courts below did not rely on the CSRA as a

basis for dismissal of petitioners’ suit. Rather, they

held that the FAA’s decision to re-hire former PATCO

controllers at a GS-9 level was definitively announced in

Recruitment Notice 93-01; that an APA challenge to

that Notice would have been ripe for judicial review

when the Notice was issued; and that petitioners’

claims therefore accrued at that time. See Pet. App. 6a-

12a, 18a-23a Because the instant suit was commenced

in March 2001, more than six years after the Recruit-

ment Notice was issued ir August 1998, the courts

below concluded that the suit was barred by the

applicable statute of limitations. See zd. at 5a-12a, 23a;

28 U.S.C. 2401(a) (“[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.”).

In contesting the court of appeals’ holding that this

suit was time-barred, petitioners argue that their legal

challenge did not become ripe for judicial review until

the general classification decision reflected in Recruit-

ment Notice 93-01 was applied to particular re-hirees,

and that their claims consequently did not accrue until

that time. Cf. Bay Area Laundry & Dry Cleaning

Pension Trust Fund v. Ferbar Corp., 522 U.S. 192, 195

(1997) (“A limitations period ordinarily does not begin

to run until the plaintiff has a complete and present

cause of action.”) (internal quotation marks omitted).

At least by that point, however, any challenge could

have been brought only pursuant to the comprehensive

and exclusive review provisions of the CSRA, not in an

APA suit in district court. Compare Reno v. Catholic

Social Services, Inc., 509 U.S. 48, 60 (1993).

Thus, if petitioners’ challenge to Recruitment Notice

93-01 could be brought in district court under the APA

at all, it was required to be brought independently and

in advance of any individual hiring decision. Petitioners

argue that any such chailenge would have been unripe.

That contention does not warrant this Court’s review,

however, because it arises in the context of the special

jurisdictional regime of the CSRA and because the

Court’s resolution of the ripeness question would not

affect the ultimate disposition of the case. If petitioners

are correct that their claims became ripe only when

individual PATCO controllers were re-hired by the

FAA and their starting salaries were established, then,

as explained above, petitioners’ suit is foreclosed

because they have no legitimate ground for bypassing

the CSRA’s comprehensive review procedures and

instead seeking relief in district court under the APA.

Nor could petitioners avoid dismissal of their claims by

characterizing this suit as a facial challenge to Recruit-

ment Notice 93-01. Assuming (as the court of appeals

held) that a facial challenge to the Notice would have

been ripe for judicial review, and that it would not have

been barred by the CSRA, any such facial challenge

was required to be filed within six years after the

Notice was issued. Petitioners’ APA suit was therefore

subject to dismissal, whether that suit is treated as a

challenge to the FAA’s salary determinations with

respect to individual FAA employees, or as a facial

challenge to the Notice itself.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.