CITIZENS ASSOCIATION OF GEORGETOWN, ET AL., PETITIONERS v. FEDERAL AVIATION ADMINISTRATION AND MICHAEL P. HUERTA, ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, RESPONDENTS
No. 15-1285
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 11, 2018 Decided March 27, 2018
On Petition for Review of an Order of the Federal Aviation Administration
Lane N. McFadden, Attorney, U.S. Department of Justice, argued the cause for federal respondents. With him on the brief were Jeffrey H. Wood, Acting Assistant Attorney General, and David C. Shilton, Attorney.
Before: HENDERSON and TATEL, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
I.
National Airport, described by President Franklin D. Roosevelt as “one of the world‘s greatest facilities, surely its most convenient and, some of us like to think, probably its most beautiful,” has served the Washington, D.C. metropolitan area for more than seventy-five years. President Franklin D. Roosevelt, Remarks of the President Delivered in Connection
The actual path pilots flew, however, was not quite a straight line. Rather, a noise-abatement procedure designed to divert aircraft over the river and reduce flying time above more populated areas instructed pilots to take off in a northern direction and “[f]ollow the Potomac River until abeam the Georgetown reservoir,” at which point they were to join the “[National] 328 radial.” FAA, Terminal Procedures Publication 363 (Feb. 11, 2010), Joint Appendix (J.A.) 553. As shown in Figure 1, which depicts departure flight paths from radar data recorded in 2002, aircraft departing according to
Figure 1 (J.A. 588)
In the early 2000s, the FAA, acting pursuant to its authority under the Federal Aviation Act of 1958,
The FAA‘s efforts culminated in a new departure procedure for National known as “LAZIR.” This RNAV procedure guided north-bound departures from National roughly along the same route set out in the conventional NATIONAL procedure, except that it took advantage of Global Positioning System technology to guide aircraft. As the FAA was implementing LAZIR at National in 2011, Congress enacted legislation that directed the agency “to modernize the nation‘s air-traffic control system.” City of Phoenix v. Huerta, 869 F.3d 963, 966 (D.C. Cir. 2017), opinion amended on reh‘g, 881 F.3d 932 (D.C. Cir. 2018) (citing FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, §§ 101(a),
When exercising its authority to promulgate new departure procedures, see
In June 2013, the FAA issued a draft EA for the D.C. Metroplex. In order to analyze the environmental impact of the new LAZIR procedures, the agency relied on a computer model that, among other things, compared a scenario where no aircraft flew LAZIR with one where the majority of aircraft did so. According to that model, no neighborhood in the Washington, D.C. area was expected to experience a “reportable noise increase,” which under FAA Order 1050.1E meant noise that, though not itself significant under NEPA, warranted further investigation. The FAA distributed the draft EA to some 450 recipients—again, only two of whom were officials in the District—and opened a notice and comment period, which it publicized in local newspapers.
After reviewing comments on the draft EA, the FAA prepared a Finding of No Significant Impact and Record of Decision (“FONSI/ROD“), which formalized its determination that the D.C. Metroplex would “not significantly affect the quality of [the] human environment.” FAA, Finding of No Significant Impact (FONSI) and Record of Decision (ROD) for the Washington D.C. Optimization of the Airspace and Procedures in the Metroplex (DC OAPM) 17 (Dec. 2013) (“FONSI/ROD“), J.A. 1485, 1505. Published in December 2013, the FONSI/ROD stated that it “constitutes a final order of the FAA Administrator and is subject to . . . judicial review
Although the FAA approved the D.C. Metroplex in December 2013, pilots used the new LAZIR-based departure procedures only occasionally during the following year. Their hesitancy stemmed from the worry that LAZIR, designed to encourage pilots to fly over the center of the Potomac River, would bring them closer to a patch of restricted airspace known as “Prohibited Area 56” (“P-56“), which includes the skies over the National Mall, the White House, and the U.S. Capitol. Pilots who fly into P-56 without Secret Service authorization can be fined.
To address the pilots’ concern, the FAA conducted a series of trial validation activities in March 2015 aimed at determining whether pilots could utilize the D.C. Metroplex LAZIR procedures without veering into P-56. During this period, the agency actively encouraged pilots to fly LAZIR and, with the Secret Service‘s consent, guaranteed that they would incur no penalties for straying into P-56. After successfully completing the trials, the FAA, in April and June 2015, published charts depicting the LAZIR-based routes in the Terminal Procedures Publication—a catalog of airport diagrams and procedures the agency issues every fifty-six days. Although some route names changed and a few technical modifications were made, the routes published in 2015 were identical to those evaluated in the 2013 FONSI/ROD.
Petitioners Georgetown University and six neighborhood associations located in Northwest D.C. (collectively, “Georgetown“) are concerned about increased noise from air traffic out of National. In October 2013, approximately four
II.
Federal courts may review decisions of the Secretary of Transportation, including FAA orders, pursuant to
The threshold issue in this case is whether Georgetown filed its petition for review within sixty days of when the FAA
A.
To determine when the FAA issued its final order, we follow the Supreme Court‘s well-established two-part test for assessing finality. First, to qualify as final, an order must “mark the consummation of the agency‘s decisionmaking process,” Friedman v. FAA, 841 F.3d 537, 541 (D.C. Cir. 2016) (quoting Bennett v. Spear, 520 U.S. 154, 177–78 (1997)); and second, it must “either determine[] ‘rights or obligations’ or [be] a source of ‘legal consequences,‘” City of Phoenix, 869 F.3d at 968 (quoting Friedman, 841 F.3d at 541).
To apply the first part of the test—whether an order constitutes the “consummation of [the] decisionmaking process“—we ask “not whether there are further administrative proceedings available, but rather ‘whether the impact of the order is sufficiently “final” to warrant review in the context of the particular case.‘” Friedman, 841 F.3d at 542 (quoting Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584, 591 (D.C. Cir. 1971)). In this case, that means we must determine when the “impact” of the LAZIR-based departure procedures was sufficiently final for us to review
Resolution of this issue is controlled by our court‘s recent decision in City of Phoenix v. Huerta, 869 F.3d 963. That case concerned the FAA‘s effort to develop next-generation flight procedures, much like those at issue here, for Phoenix‘s Sky Harbor International Airport. After evaluating the environmental impact of the proposed routes, the FAA published them and put them into immediate use in September 2014. Following swift public outcry, the FAA suspended the new routes and began a dialogue with the city of Phoenix about developing alternative departure procedures. In April 2015, after several months of back-and-forth and having convened a working group to study the issue, the FAA issued a final report, which, although making a few adjustments, “reaffirmed the agency‘s decision not to conduct further review of the new flight paths’ environmental impact.” Id. at 968. In June 2015, Phoenix filed a section 46110 petition for review in this court, which the FAA sought to dismiss as untimely for having been filed more than sixty days—indeed, more than nine months—after the original publication of the routes.
As in this case, the crucial question in City of Phoenix was when did the FAA issue its final order as to the disputed routes? According to the FAA, its decisionmaking consummated in September 2014 when it initially published the routes. Id. at 968–69. For its part, Phoenix argued that the FAA‘s decision became final only after the distribution of the April 2015 report. Siding with the FAA, the court explained that the agency‘s decisionmaking concluded with the initial publication when “the new routes [went] into effect following extensive testing and evaluation.” Id. at 969.
First, Georgetown invokes FAA Order 7100.41, Performance-Based Navigation Implementation Process, which outlines a five-step process for designing and implementing new routes. According to this rubric, the preparation of a draft EA takes place during step two while route publication and implementation occurs at step four. Although nothing in FAA Order 7100.41 specifies the step at which “the FAA‘s decision regarding the new flight routes crystallize[s] into final agency action,” City of Phoenix, 869 F.3d at 968, Georgetown argues that an action becomes final only at step four, which, according to Georgetown, did not occur until June 2015 when the agency published the route charts. We have no need to parse the intricacies of FAA Order 7100.41 for a simple reason: the order did not take effect until April 3, 2014—years after the D.C. Metroplex was initially conceived and months after the FONSI/ROD was published—and contains no indication that it applied retroactively. Thus, there is no reason to expect the EA process for the D.C. Metroplex to have conformed to the timeline set out in Order 7100.41 nor to think that the order somehow displaces this court‘s ordinary finality inquiry.
Second, Georgetown argues that because the FAA conducted additional validation trials of LAZIR in March 2015, the agency could not have “consummated” its decisionmaking until it published the route charts in June 2015. This court rejected a nearly identical argument in City of Phoenix. In that case, even though the FAA had suspended the new departure procedures and expressly agreed to reevaluate their environmental effects and even though this post-
The other element of the finality inquiry—whether the agency‘s order determined “rights or obligations” or was the source of “legal consequences,” Friedman, 841 F.3d at 541 (internal quotation marks omitted)—is likewise largely controlled by City of Phoenix. To decide whether this element was satisfied, the court asked which document—the initial publication of new routes or the subsequent reaffirmance—“led to the effects petitioners [sought] to reverse: increased noise in certain areas of Phoenix.” City of Phoenix, 869 F.3d at 969. According to the court, it was the former because it was that document that led to the utilization of next-generation procedures and the resulting increased noise; in fact, it was the very document petitioners sought to vacate. Id.
Georgetown argues that even if the 2013 FONSI/ROD was the source of certain legal consequences, additional “real-world” consequences flowed from the 2015 chart publication. According to Georgetown, the publication had the effect of “rendering LAZIR the default path for all RNAV-equipped aircraft departing north from National,” Pet‘rs’ Br. 16, thus making it too a “final and reviewable [order] within the meaning of
Although at first glance Georgetown‘s argument has some appeal, it runs into both procedural and substantive obstacles. To begin with, Georgetown first raised the argument in its reply brief, and this court ordinarily deems such
In any event, Georgetown has identified no record evidence for its claim that printing route charts in the Terminal Procedures Publication actually rendered LAZIR the default departure procedure. Quite to the contrary, the evidence indicates that the transition to LAZIR was set in motion by the FAA‘s 2011 working group and flowed directly from the agency‘s December 2013 approval of the D.C. Metroplex. See supra at 4–8. Unlike in City of Dania Beach, the 2015 publication of route charts established no “new marching orders.” 485 F.3d at 1188.
The December 2013 publication of the FONSI/ROD satisfied both elements of this court‘s finality test: it “mark[ed] the consummation of the agency‘s decisionmaking process and . . . [was] a source of legal consequences.” City of Phoenix, 869 F.3d at 968 (internal quotation marks omitted). By contrast, the 2015 chart publication satisfied neither requirement. Accordingly, Georgetown‘s effort to seek judicial review comes too late unless it had “reasonable grounds” for its untimely filing—an issue to which we now turn.
B.
This court “rarely [finds] ‘reasonable grounds’ under section 46110(a).” Electronic Privacy Information Center v. FAA, 821 F.3d 39, 43 (D.C. Cir. 2016). After analyzing the few
Unlike petitioners in City of Phoenix, Georgetown does not argue that it delayed filing its petition for review because the FAA led it “to think the [agency] might fix the noise problem without being forced to do so by a court.” Id. After all, by its own admission, it “first learned” of the D.C. Metroplex in July 2015, a year and a half after the FAA approved it. Pet‘rs’ Br. 17. Instead, Georgetown argues that the FAA‘s actions were misleading in a different way, namely by failing to inform Georgetown of the ongoing EA and, later, the publication of the FONSI/ROD. This, Georgetown insists, amounts to “reasonable grounds for not filing by the 60th day.”
In support, Georgetown first faults the FAA for sending actual notice of the EA process to only two officials connected to Washington, D.C.—the State Historic Preservation Officer and the city‘s delegate to Congress—despite sending such notice to more than 300 officials outside the District. At oral argument, FAA counsel explained that this troublingly imbalanced notice resulted not from any intentional effort to exclude Washington, D.C. from the EA process, but rather
For one thing, our cases make clear that lack of “actual notice” neither “delay[s] the start of the sixty-day filing period” nor provides reasonable grounds for a petitioner‘s failure to timely file for review under section 46110. Avia Dynamics, Inc. v. FAA, 641 F.3d 515, 520 (D.C. Cir. 2011). Rather, the clock starts ticking from “the date the order is officially made public.” Id. at 519. Of course, this is not to say that the FAA has no duty to inform the public of an ongoing EA process or to make the final order public in an appropriate manner. But that leads to the second point: the administrative record in this case demonstrates that the FAA in fact satisfied its notice obligations through “[p]ublication in local newspapers.”
Georgetown next argues that even if the FAA met the letter of its notice obligation, it still had reasonable grounds for its delayed filing because the agency “collaborated with MWAA
Georgetown first cites an exchange of letters between Councilmember Evans and the MWAA in the fall of 2013. In his letter to the MWAA, Mr. Evans stated that “[i]t ha[d] come to [his] attention that the air traffic pattern at Reagan National Airport ha[d] changed” and requested that the FAA revert to the old routes. Letter from Jack Evans, Councilmember, Washington, D.C., to Michael A. Curto, Chairman, MWAA (Oct. 9, 2013), J.A. 1482. Although the MWAA‘s response—that no flight paths had changed since August 2008—turned out to be wrong, that error cannot be charged to the FAA because the two are independent bodies with no members in common. As proof that the two agencies coordinated their response, Georgetown points out that the MWAA admitted in its letter that it “contacted the FAA Traffic Control Tower for Reagan National.” Letter from John E. Potter, President, MWAA, to Jack Evans, Councilmember, Washington, D.C. (Nov. 14, 2013), J.A. 1483. This offhand reference, however, is far too thin a reed to demonstrate that these two independent bodies collaborated on anything, much less an effort to hide the development of the D.C. Metroplex from the residents of Georgetown.
Next, Georgetown points to several meetings (from March 2014 to July 2015) between representatives from the various affected neighborhood associations and agency officials during which the FAA said nothing about the project. Acknowledging the meetings, the FAA explains that it never mentioned the FONSI/ROD because it assumed that the complaints about ongoing air traffic noise were unrelated to LAZIR, which, during that time, accounted for fewer than 4% of departures.
To sum up, then, given that the FAA, in conformity with its regulations, published notice of the FONSI/ROD in a variety of public domains, including one of the most-widely read publications in the Washington area, and given that the record contains no indication that the FAA intentionally obscured the issuance of a final order, we have no basis for concluding that this is one of those “rare cases” in which reasonable grounds excuse the failure to timely file a petition for review.
III.
The FAA‘s efforts to inform the residents of Georgetown about the evaluation of the D.C. Metroplex were hardly a model of sound agency practice. But neither the FAA‘s stumbles nor those of its contractor excuse Georgetown‘s failure to timely file a petition for review given that the agency provided adequate notice of the EA process and never indicated that it might change its position. Filing deadlines, replete throughout the United States Code, promote prompt and final judicial review of agency decisions and ensure that agencies and affected parties can proceed free from the uncertainty that an action may be undone at any time. The petition for review is dismissed.
So ordered.