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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 10, 2003 Decided January 13, 2004
No. 02-5304
ROBERT HARRIS, ET AL.,
APPELLANTS
v.
FEDERAL AVIATION ADMINISTRATION AND
JANE F. GARVEY, ADMINISTRATOR OF THE
FEDERAL AVIATION ADMINISTRATION,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 01cv00503)
David M. Glanstein argued the cause for the appellants.
Joel C. Glanstein was on brief.
Edith M. Shine, Assistant United States Attorney, argued
the cause for the appellees. Roscoe C. Howard, Jr., United
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
States Attorney, and R. Craig Lawrence, Assistant United
States Attorney, were on brief.
Before: HENDERSON, TATEL and ROBERTS, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: In 1981, most
of the air traffic controllers who were members of the Profes-
sional Air Traffic Controllers Organization (PATCO) illegally
went on strike from their jobs with the Federal Aviation
Administration (FAA). See 5 U.S.C. § 7311(3). President
Reagan responded by firing those who refused to return to
work and banned them from future FAA employment.
Twelve years later, in August 1993, the ban was lifted.
Pursuant to that directive, the FAA published Recruitment
Notice 93–01 (Recruitment Notice or Notice). The Notice
provided an avenue for former PATCO controllers to apply to
work at the FAA and specified a GS–9 grade-level, with that
grade level’s corresponding salary range, for any hirees.
Robert Harris and the other 171 appellants are former
PATCO controllers who were hired by the FAA pursuant to
the Recruitment Notice. In 2001, they filed suit under the
Administrative Procedure Act (APA), 5 U.S.C. § 704, claim-
ing that the FAA’s decision to hire them at the GS–9 level
and corresponding salary range – as opposed to their prior,
pre-termination grade-levels and corresponding salary
ranges – was arbitrary and capricious. The district court
dismissed their case for lack of subject matter jurisdiction,
concluding that they had failed to bring their claim within the
six-year statute of limitations set forth in 28 U.S.C. § 2401(a).
In doing so, the district court found that the Recruitment
Notice constituted ‘‘final agency action’’ for the purpose of the
appellants’ APA claim and that their case would have been
ripe for review when the Notice was published in 1993. The
appellants contend that the district court erred on both
grounds. We disagree and affirm.
3
I. BACKGROUND
On August 3, 1981, after several months of negotiation and
years of disputes with the FAA, several thousand air traffic
controllers who were members of the PATCO went on strike
from their jobs with the federal government. In response,
President Reagan demanded that they return to work within
48 hours or risk losing their jobs. Over 11,000 controllers
refused to do so, so President Reagan fired them and banned
them from returning to work at the FAA. More than twelve
years later, on August 12, 1993, the lifetime ban was lifted.
Shortly thereafter, the FAA issued the Recruitment Notice.
The Notice formally alerted former PATCO controllers
that they were eligible for ‘‘reinstatement’’ at the FAA and
provided them a specific avenue to apply. J.A. 53. Control-
ler positions, the Notice stated, would be filled as vacancies
occurred and, although the FAA expected to add only a few
controllers from various sources over the next few years,1 by
the Notice it was ‘‘establishing an inventory of applicants who
have reinstatement and transfer eligibility.’’ Id. According
to the Notice, applicants would be initially hired at the GS–9
grade level, with a corresponding salary of between $27,789
and $36,123. Internal FAA documents explained that hiring
would take place at the GS–9 level because the former
PATCO controllers would need modified training to learn new
air traffic control systems; they further explained that a
controller’s salary within that range would be based on his
penultimate salary at the time he was fired. ‘‘Advancement
above [the] GS–9 [grade level],’’ the Notice declared, would
‘‘be based upon successful completion of training and/or certi-
1 The Notice was not the only avenue by which a former PATCO
controller could return to the FAA. Regional FAA offices also
published their own recruitment notices, which established their
own particular salary ranges. Similarly, at least as early as 1985,
former PATCO controllers could apply for employment at certain
Department of Defense (DOD) facilities, proceed through DOD pay
scales, and (after the 1993 directive) transfer to the FAA and retain
their equivalent DOD grade level and corresponding salary. J.A.
25–27, 157.
4
fication requirements for the next higher grade and applica-
ble time-in-grade requirements.’’ Id.
The appellants are 172 current and retired former PATCO
controllers who were hired by the FAA between 1995 and
1998 pursuant to the Recruitment Notice.2 In 2001, they
brought suit under the APA ‘‘to challenge as arbitrary and
capricious the FAA’s decision to disregard [their] prior high-
est pay grades and performance steps upon their reemploy-
ment with the FAA from 1995 to 1998.’’ Appellants’ Br. at 3.
They claim that the FAA should have hired them at their
prior, pre-termination grade3 – and at the appropriate accom-
panying salary – and not at the GS–9 level and at a salary
within its range.
In the district court, the FAA moved to dismiss the case on
the grounds that the appellants’ claims were time barred, that
they had failed to exhaust their administrative remedies and
that they had failed to state a claim. Concluding that the
Recruitment Notice constituted the final agency action under
the APA, the court held that the appellants did not meet the
six-year statute of limitations because their claims were not
filed until 2001. The court also rejected the appellants’ claim
that their claims did not become ripe for review until the
FAA hired them beginning in 1995, believing that their APA
claim was ripe for review in 1993.
On appeal, the appellants argue that the district court
erred in two ways. First, they claim that the Recruitment
Notice could not constitute final agency action because the
FAA’s hiring process was incomplete and because the Notice
had no immediate impact on them until they were hired.
Second, they renew their claim that even if the Notice was a
2 As the district court noted, the Notice was undated but stated
that it was ‘‘open’’ for six weeks only – from September 1, 1993 to
October 15, 1993. Id. The appellants do not contest the fact that
they applied for employment at the FAA pursuant to the Notice
during that time frame.
3 At least one of the appellants was at the GS–14 grade level
when he was fired and if hired at that level would have received a
significantly greater salary. J.A. 241.
5
final agency action, the APA’s statute of limitations did not,
and could not, begin to run until their claim became ripe for
judicial review, which they contend was not until they were
hired beginning in 1995. The FAA counters that the district
court’s conclusions were correct, but that even if they were
not, this court should affirm the dismissal on other grounds,
including: (1) the appellants failed to show that they were
aggrieved; (2) they had alternative remedies and thus no
cause of action under the APA; (3) they failed to exhaust
their alternative administrative remedies; and (4) they failed
to show that the FAA’s decision to hire former PATCO
controllers at the GS–9 level as opposed to their prior grade
levels was arbitrary or capricious.
II. DISCUSSION
Section 704 of the APA provides for judicial review of ‘‘final
agency action.’’ 5 U.S.C. § 704. Unless another statute
prescribes otherwise, a suit challenging final agency action
pursuant to section 704 must be commenced within six years
after the right of action first accrues. 28 U.S.C. § 2401(a);4
Sendra Corp. v. Magaw, 111 F.3d 162, 165 (D.C. Cir. 1997).
The right of action first accrues on the date of the final
agency action. Id.; see Impro Prods., Inc. v. Block, 722 F.2d
845, 850–51 (D.C. Cir. 1983) (‘‘In this case, where no formal
review procedures existed, the cause of action accrued when
the agency action occurred.’’).
The appellants first contend that the district court erred
because the Recruitment Notice did not constitute final agen-
cy action. The United States Supreme Court explained in
Bennett v. Spear, 520 U.S. 154, 177–78 (1997), that:
[a]s a general matter, two conditions must be satis-
fied for agency action to be ‘‘final’’: First, the action
must mark the ‘‘consummation’’ of the agency’s deci-
sionmaking process, Chicago & Southern Air Lines,
4 ‘‘[E]very civil action commenced against the United States shall
be barred unless the complaint is filed within six years after the
right of action first accrues.’’ 28 U.S.C. § 2401(a).
6
Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113
(1948) – it must not be of a merely tentative or
interlocutory nature. And second, the action must
be one by which ‘‘rights or obligations have been
determined,’’ or from which ‘‘legal consequences will
flow,’’ Port of Boston Marine Terminal Assn. v.
Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71
(1970).
See Domestic Secs., Inc. v. SEC, 333 F.3d 239, 246 (D.C. Cir.
2003). The appellants contend that the Recruitment Notice
fails on both counts. With regard to the first condition, they
make two arguments. First, relying on Fourth Branch As-
socs. (Mechanicville) v. FERC, 253 F.3d 741, 746 (D.C. Cir.
2001), they claim that the Notice manifested only the FAA’s
future intent to hire former PATCO controllers. Second,
they contend that the FAA was still formulating its hiring
process with regard to former PATCO controllers after publi-
cation of the Notice and that the FAA subsequently modified
its policies in 1996 when it allowed former PATCO controllers
who were employed by DOD to transfer to the FAA and
maintain their DOD grade levels.
Neither argument holds water. In Fourth Branch Assocs.,
we rejected the petitioner’s argument that FERC’s decision
to initiate a surrender proceeding – in which FERC explicitly
stated that it had made ‘‘no final decision’’ regarding the
outcome of the proceeding – constituted a final agency action.
253 F.3d at 746. In contrast, while the Notice here qualified
the date, if ever, on which a former PATCO controller might
be hired – stating that ‘‘the FAA expects to fill only a small
number of [controller] positions from a variety of sources
over the next few years,’’ that ‘‘employment opportunities are
limited’’ and that it was therefore ‘‘establishing an inventory
of applicants who have reinstatement and transfer eligibility,’’
J.A. 53 – it stated categorically that, when such hiring oc-
curred pursuant to the Notice, it would be at the GS–9 grade
level and at a corresponding salary.5 That declaration consti-
5Indeed, the Notice explained that ‘‘[a]dvancement above GS–9’’
would be available to applicants – who after all had not served as
controllers for 12 years – ‘‘based upon successful completion of
7
tutes an ‘‘unequivocal statement of the agency’s position’’
sufficient to meet the first requisite for final agency action.
Reliable Automatic Sprinkler Co. v. Consumer Prod. Safety
Comm’n, 324 F.3d 726, 734 (D.C. Cir. 2003).
The appellants also claim that, even if the Notice itself was
initially definitive with regard to the grade level and salary of
former PATCO controllers hired pursuant to it, the FAA
modified its hiring policy after the Notice’s publication. We
have previously observed that ‘‘[i]f for any reason the agency
reopens a matter and, after reconsideration, issues a new and
final order, that order is reviewable on its merits, even
though the agency merely reaffirms its original decision.’’
Sendra Corp., 111 F.3d at 167. Here, however, the evidence
to which the appellants point for support does not indicate
that the FAA in any way altered or reconsidered its decision
regarding the grade and salary of those former PATCO
controllers hired pursuant to the Recruitment Notice. FAA
Order 3300.30, which issued on December 22, 1993, makes
clear that any former PATCO controller applying pursuant to
the Notice would not be hired at the grade level he held
before the strike; rather it confirms the Notice by stating
that such hiree would initially be paid at the GS–9 grade level
at a salary corresponding as closely as possible to his penulti-
mate, pre-termination salary. J.A. 60. Furthermore, the
fact that some former PATCO controllers who worked as
controllers at DOD in 1996 and who subsequently transferred
to the FAA (but not pursuant to the Notice) were able to
maintain their then-current grade level does not mean that
the FAA altered the Notice’s offer to hire at the GS–9 level
former PATCO controllers who required retraining. Indeed,
that the FAA continued to hire the appellants through 1998 at
the GS–9 level pursuant to the Notice manifests that the FAA
continued to enforce it as written.
The appellants next claim that the district court erred in
concluding the Notice constituted final agency action because
it had no ‘‘immediate impact or direct legal consequences’’ on
training and/or certification requirements for the next higher
grade.’’ Id.
8
any former controllers until they were in fact hired by the
FAA. Appellants’ Br. at 12. The test for finality, however, is
not so narrow – it is met if ‘‘the action [is] one by which rights
or obligations have been determined, or from which legal
consequences will flow.’’ Bennett, 520 U.S. at 178 (quotations
and citations omitted); see Reliable Automatic Sprinkler, 324
F.3d at 731 (‘‘Agency action is considered final to the extent it
imposes an obligation, denies a right, or fixes some legal
relationship.’’ (citing Role Models Am., Inc. v. White, 317
F.3d 327, 331–32 (D.C. Cir. 2003))). As the district court
observed, the Notice constituted the FAA’s formal offer of
employment to hire former PATCO controllers at the GS–9
level, an offer which the appellants accepted pursuant to its
terms by applying during the 1993 six-week period. The
hiring of the appellants from 1995 to 1998 at the GS–9 level
simply implemented the FAA’s decision which was made in
1993 and spelled out in the Notice. See Impro Prods., 722
F.2d at 850 (agency’s renewal of earlier decision – periodic
redistribution of reprints of articles allegedly containing false
information – did not restart statute of limitations).
The appellants alternatively contend that, even if the No-
tice constituted final agency action, the district court erred in
dismissing their law suit because the six-year statute of
limitations did not begin to run until after they were hired.
Had they brought their claim in 1993, the appellants contend,
the district court would have dismissed their case for lack of
ripeness. We have declined previously to consider an after-
the-fact invocation of the ripeness doctrine to defeat a statute
of limitations, although not in the context of an APA claim.
See, e.g., Eagle–Picher Indus., Inc. v. EPA, 759 F.2d 905,
912–14 (D.C. Cir. 1985) (CERCLA claim brought too late to
meet ninety-day statute of limitations and petitioner’s ripe-
ness argument rejected). Nevertheless, we believe that the
appellants’ claim was ripe for review in 1993.
The ripeness inquiry requires a court to look both to ‘‘the
fitness of the issues for judicial review and the hardship to
the parties of withholding court consideration.’’ Abbott Labs.
v. Gardner, 387 U.S. 136, 149 (1967), overruled on other
9
grounds, Califano v. Sanders, 430 U.S. 99, 105 (1977); see
Sprint Corp. v. FCC, 331 F.3d 952, 956–58 (D.C. Cir. 2003).
‘‘In determining the fitness of an issue for judicial review we
look to see whether the issue is purely legal, whether consid-
eration of the issue would benefit from a more concrete
setting, and whether the agency’s action is sufficiently final.’’
Clean Air Implementation Project v. EPA, 150 F.3d 1200,
1204 (D.C. Cir.1998) (internal quotation omitted). We have
already determined that the Recruitment Notice constituted
final agency action; nevertheless the appellants argue that
their case was not ripe for judicial review until they were
hired because the FAA’s decision was not sufficiently crystal-
lized and because they had not yet suffered any ‘‘direct
hardship.’’ Appellants’ Br. at 19. As we explained in Sprint
Corp., however, ‘‘the question of whether an agency decision
is arbitrary and capricious is a purely legal question,’’ and
‘‘[f]itness TTT is more likely to be found where ‘the issue
tendered is a purely legal one.’ ’’ 331 F.3d at 956 (quoting
Abbott Labs., 387 U.S. at 149, citing Fox Television Stations,
Inc. v. FCC, 280 F.3d 1027, 1039 (D.C. Cir.), opinion modified
on reh’g on other grounds, 293 F.3d 537 (D.C. Cir. 2002)); see
Barrick Goldstrike Mines Inc. v. Browner, 215 F.3d 45, 49
(D.C. Cir. 2000) (case ripe for judicial review where ‘‘ques-
tions presented are purely legal’’ and ‘‘[n]othing TTT would
bring the issues into greater focus or assist in determining
them’’). The ‘‘prospect’’ of hardship is sufficient to make a
claim fit for judicial review. Id. Moreover, the focus of the
second prong of the ripeness inquiry – ‘‘hardship’’ to the
parties from withholding review – is not whether they have
suffered any ‘‘direct hardship,’’ but rather whether postpon-
ing judicial review would impose an undue burden on them or
would benefit the court. AT&T v. FCC, 349 F.3d 692, 700,
702 (D.C. Cir. 2003) (explaining that ‘‘ ‘hardship prong’ ’’
considers ‘‘potential hardship of delay on the [petitioner]’’
only if court finds important agency interests and rejecting
petitioner’s challenge as unripe because ‘‘both the agency and
the court would benefit from postponing review’’ and petition-
er failed to show that postponing review would cause it
10
hardship); see Ohio Forestry Ass’n v. Sierra Club, 523 U.S.
726, 733 (1998) (ripeness vel non weighs ‘‘(1) whether delayed
review would cause hardship to the plaintiffs; (2) whether
judicial intervention would inappropriately interfere with fur-
ther administrative action; and (3) whether the courts would
benefit from further factual development of the issues pre-
sented’’). Accordingly, because the Notice sufficiently affect-
ed their legal rights as well as the obligations of the FAA and
because there was no reason to postpone judicial review, the
appellants’ claim was ripe in 1993.
Our recent decision in Norwest Bank Minnesota National
Association v. FDIC, 312 F.3d 447 (D.C. Cir. 2002), also
supports affirmance. In Norwest, we considered whether the
FDIC’s 1992 interpretation applying a statutory amendment
to the calculation of banking insurance premiums triggered 12
U.S.C. 1817(g)’s five-year statute of limitations. See id. at
449–50. Rejecting the bank’s claim that it could not have
challenged the agency’s interpretation until 1995, at which
time the FDIC’s interpretation imposed a financial burden on
the bank itself, we concluded that ‘‘it has long been settled
that statutes of limitations begin running when the wrong has
been committed, even if at the time no more than nominal
damages may be proved, and no more recovered.’’ Id. at 452
(emphasis added) (internal quotation omitted).6 Just as the
FDIC’s 1992 interpretation constituted final agency action for
the purpose of the bank’s challenge – even if the FDIC’s
interpretation did not financially harm the bank until some
years later – so too did the 1993 Recruitment Notice, which
likewise determined the appellants’ future salaries – notwith-
standing their pocketbooks did not feel it until years later–
constitute final agency action for the purpose of the appel-
lants’ APA claim here. Norwest, 312 F.3d at 451–52.
6 We noted that ‘‘[o]ne of the policies underlying the statute of
limitations is repose[,]’’ concluding that if the statute of limitations
did not begin to run until FDIC’s interpretation caused financial
harm to Norwest, ‘‘FDIC’s books would never close.’’ Id. at 452
(citing 3M Co. v. Browner, 17 F.3d 1453, 1457 (D.C. Cir. 1994)).
11
For the foregoing reasons, the judgment of the district
court is affirmed.7
So ordered.
7 The district court dismissed the suit pursuant to Fed. R. Civ. P.
12(b)(1). We have previously declared that section 2401(a), ‘‘[u]n-
like an ordinary statute of limitations, TTT is a jurisdictional condi-
tion attached to the government’s waiver of sovereign immunity,’’
Spannaus v. United States Dep’t of Justice, 824 F.2d 52, 55 (D.C.
Cir. 1987). Nevertheless, after the Supreme Court in Irwin v.
Department of Veteran Affairs, 498 U.S. 89, 95–96 (1990), rejected
the Fifth Circuit’s jurisdictional reading of Title VII’s similar filing
deadline and instead held that the ‘‘same rebuttable presumption of
equitable tolling applicable to suits against private defendants
should also apply to suits against the United States,’’ we recently
expressed doubt about the jurisdictional nature of an analogous
statute of limitations. See Chung v. United States Dep’t of Justice,
333 F.3d 273, 277 (D.C. Cir. 2003) (rejecting jurisdictional nature of
Privacy Act statute of limitations in light of Irwin); see also Zipes
v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (‘‘filing a
timely charge of discrimination TTT is not a jurisdictional prerequi-
site to suit in federal court, but a requirement that, like a statute of
limitations, is subject to waiver, estoppel, and equitable tolling’’);
Leavell v. Kieffer, 189 F.3d 492, 494–95 (7th Cir. 1999) (statute of
limitations not jurisdictional but instead affirmative defense). The
parties have not questioned the district court’s dismissal pursuant
to 12(b)(1), and, given our disposition, we need not determine
whether the dismissal should have been pursuant to 12(b)(1) or
12(b)(6).