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Harris v. Federal Aviation Administration

January 13, 2004

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)

Before: Henderson, Tatel and Roberts, Circuit Judges.

The opinion of the court was delivered by: Karen Lecraft Henderson, Circuit Judge

Argued October 10, 2003

In 1981, most of the air traffic controllers who were members of the Professional 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, claiming 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.

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. 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,*fn1 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 certification requirements for the next higher grade and applicable 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.*fn2 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*fn3 - and at the appropriate accompanying 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 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);*fn4 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 agency action. The United States Supreme Court explained in ...


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