970 F.3d 441
4th Cir.2020Background
- FAA implemented TERPZ-6 (a NextGen RNAV departure procedure) at BWI on February 4, 2016, which routed westbound departures over historic residential areas of Howard County at low altitudes and generated substantial community noise complaints.
- The FAA had earlier completed a D.C. Metroplex environmental assessment and issued a Finding of No Significant Impact for the Metroplex in December 2013; later TERPZ modifications were treated as categorically exempt from further NEPA review.
- Maryland Aviation Administration and members of Congress raised noise concerns to the FAA beginning in late 2015; FAA did not meaningfully engage until mid–late 2016 and later convened a BWI Roundtable to seek solutions.
- Howard County first wrote to the FAA on May 24, 2016 (110 days after TERPZ-6 went into effect); it submitted an administrative petition July 18, 2018; the FAA sent a brief rejection letter on September 18, 2018.
- Howard County filed this § 46110 petition for review on November 13, 2018, challenging TERPZ-6 as arbitrary and capricious under the APA and alleging NEPA and notice-and-comment defects; the Fourth Circuit dismissed the petition as untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness under 49 U.S.C. § 46110(a) (60‑day rule) | County: limitations period began when FAA rejected its administrative petition (Sept 18, 2018); filing Nov 13, 2018 was timely. | FAA: final order issued when TERPZ‑6 was published and put into effect (Feb 4, 2016); County filed far outside 60 days. | Held: Limitations ran from Feb 4, 2016; petition filed well beyond 60 days and is untimely. |
| Was FAA’s Sept 18, 2018 letter a new final order restarting the clock? | County: FAA’s rejection terminated decisionmaking and thus constituted final agency action. | FAA: the letter did not change legal rights/obligations—Bennett v. Spear finality test not met. | Held: Sept 18 letter was not a final action under Bennett; did not restart the 60‑day clock. |
| Reasonable grounds for delay under § 46110(a) exception | County: FAA’s later engagement and promises (roundtable, discussions) justified treating litigation as a last resort (citing City of Phoenix). | FAA: County waited 110 days before first engaging and then failed to pursue prompt administrative relief; FAA’s later engagement does not excuse the initial delay. | Held: No reasonable grounds; exception narrowly construed and County’s delayed engagement was not excused. |
| Merits (NEPA/APA arbitrary & capricious; notice‑and‑comment) | County: TERPZ‑6 required fuller NEPA analysis and notice-and-comment; FAA failed to assess noise impacts. | FAA: FAA followed applicable NEPA procedures and exemption rules; merits not reached due to timeliness. | Held: Court did not reach merits—the petition was dismissed as untimely. |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (1997) (two‑part finality test for reviewable agency action)
- City of Phoenix v. Huerta, 869 F.3d 963 (D.C. Cir. 2017) (excusing late challenge where FAA repeatedly signaled it would fix routes)
- Citizens Ass’n of Georgetown v. Fed. Aviation Admin., 896 F.3d 425 (D.C. Cir. 2018) (NextGen environmental review context and precedent on FAA obligations)
- Maryland v. Fed. Aviation Admin., 952 F.3d 288 (D.C. Cir. 2020) (distinguishing City of Phoenix where continuous engagement was lacking)
- Safe Extensions, Inc. v. Fed. Aviation Admin., 509 F.3d 593 (D.C. Cir. 2007) (FAA conduct that can toll the limitations period by creating confusion)
- Tulsa Airports Improvement Trust v. Fed. Aviation Admin., 839 F.3d 945 (10th Cir. 2016) (confusion about finality may excuse delay)