Tulsa Airports Improvement Trust v. Fed. Aviation Admin.

Decision Date14 October 2016
Docket NumberNo. 15-5009,15-5009
Citation839 F.3d 945
Parties Tulsa Airports Improvement Trust, for and on Behalf of Cinnabar Service Company, Petitioner, v. Federal Aviation Administration, Respondent.
CourtU.S. Court of Appeals — Tenth Circuit

Roger M. Gassett, of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Tulsa, Oklahoma, (John M. Hickey, of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., and Steven K. Metcalf of McDonald, McCann, Metcalf & Carwile, L.L.P., Tulsa, Oklahoma, with him on the briefs), for PetitionerAppellant.

Edward Himmelfarb, Attorney, Appellate Staff, Civil Division, Department of Justice, Washington, D.C., (Benjamin C. Mizer, Principal Deputy Assistant Attorney General; and Michael S. Raab, Attorney, Appellant Staff, Civil Division, Department of Justice, Washington, D.C., with him on the brief), for RespondentAppellee.

Before BRISCOE, MURPHY and PHILLIPS, Circuit Judges.


, Circuit Judge.

Tulsa Airports Improvement Trust (TAIT) seeks reimbursement for amounts it paid to a third-party contractor in furtherance of a noise abatement program funded primarily by grants from the Federal Aviation Administration (FAA). Because its petition for review of agency action was not timely filed, we dismiss the action.


Since the mid–1990s, TAIT has been working to reduce noise caused by the Tulsa International Airport. Tulsa Airports Improvements Trust v. United States, 120 Fed.Cl. 254, 256–57 (2015)

. TAIT's efforts have largely been funded by grants from the FAA. Id. at 257. In 2002, while awaiting the approval of additional grant funding, TAIT instructed its contractors to place some projects on hold until additional funds were approved. Id. at 257–58. As a result of the delay, some contractors “demanded contract increases or terminated their contracts.” Id. at 258. Consequently, TAIT paid $705,913.40 to its contractors and then sought reimbursement from the FAA. Id. The FAA initially reimbursed TAIT for the costs, but subsequently demanded repayments totalling $656,574.37 after determining that the payments were “contract delay/escalation costs,” which were “not allowable” costs under the grants. Id. TAIT reimbursed the FAA for these amounts. Id. In 2010, TAIT sought reconsideration and the FAA provided reimbursements for supplemental allowable costs in the amount of $569,566.00. See Agency Record (AR) at 2187.

On January 23, 2012, TAIT informed the FAA that it had reviewed the remaining unpaid expenses1 and had “identified numerous cost categories which [were] eligible for reimbursement.” AR at 487. TAIT requested that the FAA review the attached documentation and approve the reimbursements. Id. On October 24, 2012, the FAA's Southwest Region responded that it had “carefully examined the information” provided and [could not] make a favorable determination of additional allowable costs.” AR at 1140. This letter stated that “additional reviews on the [grants] would not be considered an efficient use of resources.” Id. TAIT responded by appealing to the FAA's Associate Administrator for Airports on December 6, 2012. AR at 1141. On December 31, 2012, the Associate Administrator for Airports issued a letter to TAIT stating that, because TAIT's most recent request for reimbursement did not delineate costs that had been reimbursed as well as allowable costs that were outstanding, the FAA was “unable to find that there [were] potentially eligible costs that ha[d] not been reimbursed.” AR at 2190. The letter further stated that TAIT should resubmit any information that it believed had not been considered. Id. TAIT submitted no further documentation to the FAA.

Instead, on November 14, 2013, TAIT filed a breach of contract action in the Court of Federal Claims, invoking jurisdiction under the Tucker Act, 28 U.S.C. § 1491(a)(1)

. Tulsa Airports Improvements Trust, 120 Fed.Cl. at 256. TAIT alleged that the FAA had wrongfully determined that the payments in question were “not allowable grant costs.” Id. at 256. The Court of Federal Claims determined that it did not have subject matter jurisdiction because either 49 U.S.C. § 46110 or 49 U.S.C. § 47111 vested exclusive jurisdiction in the United States Court of Appeals. Id. at 263. Accordingly, it transferred the case to this court. Id. at 265–66. For procedural purposes, we now consider it as a petition for review of agency action.


TAIT asks us to compel the FAA “to conduct a hearing to formally consider TAIT's request for reimbursement under the Grants”—the procedure required by section 47111

. Aplt. Br. at 9. TAIT argues that section 47111 applies; that under either section 46110 or section 47111, the FAA did not issue a final order appropriate for judicial review; and that even if the FAA did issue a final order, its wording created confusion that caused TAIT's delay in filing this petition. We disagree.

First, we conclude that 49 U.S.C. § 46110

governs this action because 49 U.S.C § 47111 does not apply. Section 46110 is a general review provision that allows a person to petition for review of an order in which the person has a substantial interest.2 49 U.S.C. § 46110(a). Section 47111 specifically allows a person to petition for review of an agency's decision to withhold a payment that is due under a grant agreement.3 49 U.S.C. § 47111(d). This section also sets forth procedures that must be followed before a payment may be withheld. See 49 U.S.C. § 47111(d)(1).

Contrary to TAIT's contention, section 47111

does not apply to a finding that certain costs are not allowable under a grant agreement. Before the United States may be obligated to make a payment under a grant agreement, the statutory scheme requires that the Secretary first decide that the cost is allowable. 49 U.S.C. § 47110. Until such a determination has been made, no payment can be due. Section 47111 only applies to the withholding of payments that are due” under a grant agreement. 49 U.S.C. § 47111(d)(1) (emphasis added). A determination that a particular cost is not allowable is not a withholding of a payment that is due, but merely a determination that no payment was ever owed. Furthermore, section 47111 applies to situations in which the payment is withheld due to a violation of the grant agreement. See 49 U.S.C. § 47111(d)(1)(B). In order to withhold a payment under this section, the Secretary must notify the sponsor, provide an opportunity for a hearing, and make a finding that the sponsor has violated the grant agreement. 49 U.S.C. § 47111(d)(1)

. The FAA made no such finding because there is no allegation that TAIT violated the grant agreement. The payments were denied because the costs were not allowable, and not because of an independent violation of the grant agreement. Because section 47111 does not apply, TAIT must challenge the FAA's action under the general judicial review provision, 49 U.S.C. § 46110.

Second, we conclude that the December 31, 2012 letter is a final order issued by the FAA. We have not previously had the opportunity to address what constitutes an “order” under section 46110

, but those circuits that have considered the meaning of “order” under this section or its predecessor, 49 U.S.C. § 1486, have concluded that an agency decision is an “order” only if it possesses “the quintessential feature of agency decisionmaking suitable for judicial review: finality.” Vill. of Bensenville v. FAA, 457 F.3d 52, 68 (D.C. Cir. 2006) (citing Aerosource, Inc. v. Slater, 142 F.3d 572, 577 (3d Cir. 1998) (collecting cases)). Accordingly, the agency action must “mark the consummation of the agency's decisionmaking process,” and “be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quotations omitted); see also Vill. of Bensenville, 457 F.3d at 68 (applying Bennett in the context of 49 U.S.C. § 46110 ). In addition, most circuits require that the alleged order “be predicated on an administrative record sufficient to allow a court to engage in a meaningful review,” but this requirement is “not a demanding one.” Burdue v. FAA, 774 F.3d 1076, 1080 (6th Cir. 2014) (collecting cases).

A communication need not be formal to constitute a final agency action. Numerous circuits have held that letters from the FAA, including those not issued by the Administrator, constitute “orders” for purposes of 49 U.S.C. § 46110

. Aerosource, Inc., 142 F.3d at 577–78 (collecting cases). Further, under a similar statute, we have concluded that an informal agency communication may constitute an order suitable for judicial review. TransAm Trucking, Inc. v. Fed. Motor Carrier Safety Admin., 808 F.3d 1205, 1212 n.4 (10th Cir. 2015) ([T]he informal nature of the email communication doesn't necessarily determine whether it was a ‘final order’ within the meaning of [28 U.S.C.] § 2342(3)(A).”). In addition, [t]he mere possibility that an agency might reconsider in light of ‘informal discussion’ and invited contentions of inaccuracy does not suffice to make an otherwise final agency action nonfinal.” Sackett v. E.P.A., ––– U.S. ––––, 132 S.Ct. 1367, 1372, 182 L.Ed.2d 367 (2012).

The FAA's December 31, 2012 letter is a final order. The letter marks the consummation of the FAA's decisionmaking process. It details TAIT's prior requests and the FAA's responses thereto, including the various requests, reviews, grants, and denials over the preceding ten years. There is no indication in the letter or in the record that any additional process on the FAA's part was to follow. Although the letter does provide TAIT an opportunity to resubmit any information the FAA had not yet considered, this invitation does not make an otherwise final decision nonfinal. Absent additional action from TAIT, the FAA made clear that it would not reconsider the request. Following the receipt of the December 31, 2012 letter, TAIT took no further action. In addition, the letter determined rights and obligations by...

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