STATE OF MARYLAND, PETITIONER v. FEDERAL AVIATION ADMINISTRATION AND STEPHEN DICKSON, ADMINISTRATOR OF THE FEDERAL AVIATION ADMINISTRATION, RESPONDENTS
No. 18-1173
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 14, 2019 Decided March 10, 2020
On Petition for Review of Actions Taken by the Federal Aviation Administration
W. Eric Pilsk argued the cause for petitioner. With him on the briefs were Brian E. Frosh, Attorney General, Office of the Attorney General for the State of Maryland, and Samatha R. Caravello.
Lane N. McFadden, Attorney, Federal Aviation Administration, argued the cause for respondents. With him on the brief were Jeffrey Bossert Clark, Assistant Attorney General, U.S. Department of Justice, Eric Grant, Deputy Assistant Attorney General, and J. David Gunter II, Attorney.
Before: HENDERSON, TATEL and KATSAS, Circuit Judges.
Opinion for the Court filed by HENDERSON, Circuit Judge.
I
Reagan National is managed by the Metropolitan Washington Airports Authority (MWAA), an independent agency composed of federal and local government representatives, including three directors appointed by the Maryland Governor.1 Due to the Airport‘s location in the heart of the densely populated National Capital Region, aircraft noise is continual in its surrounding communities. Because “[t]he aircraft and its noise are indivisible,” City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 628 (1973) (quoting Am. Airlines, Inc. v. Town of Hempstead, 272 F. Supp. 226, 230 (E.D.N.Y. 1967), aff‘d, 398 F.2d 369 (2d Cir. 1968)), aircraft noise can be relocated away from nearby residential areas by rerouting arrivals and departures only. With little unpopulated land in the area, “local communities have encouraged use of the Potomac River corridor to reduce flights over noise-sensitive areas” for decades. Resp‘ts’ Br. 4-5.
The FAA shoulders the burden of balancing “the safety of aircraft and the efficient use of airspace,”
The FAA amended three approach paths into Reagan National during 2015.2 That October, after the first two amendments were published and had taken effect, the MWAA established the Reagan National Airport Community Working Group (Working Group) “in response to increasing community concerns regarding aircraft noise affecting residential areas in the District of Columbia, Virginia and Maryland along the Potomac and Anacostia
On December 10, 2015—the day it implemented the last of the three amendments—the FAA informed the Working Group of all three amendments and “began assuring the public that it would work cooperatively to implement further changes to address noise concerns.” Pet‘r‘s Br. 37. The parties’ working relationship started well but deteriorated over time. Unable to agree on alternative flight paths, the State‘s frustration mounted and ultimately boiled over when, in April 2018, Acting FAA Administrator Daniel Elwell, in response to a letter from the Governor, informed the State that “the time for Maryland to commence litigation ... is long past” and that “[t]o the degree any discussions we might have result in proposed changes to air traffic routes or procedures, those would be new Federal actions . . . .” J.A. 836. The State claims that the FAA‘s reply “created additional uncertainty and reasonably prompted [it] to preserve its rights by filing this petition” on June 26, 2018. Pet‘r‘s Br. 43. Its petition alleges the FAA “provided no public notice of the substance of the changes it was contemplating, afforded no opportunity for public comment, engaged in no modeling or assessment of potential noise impacts, performed no analysis under NEPA, and made no effort to comply with the NHPA or [the Department of Transportation Act].” Id. at 16. The FAA subsequently moved to dismiss the petition as untimely and the State then moved to amend its petition to include two additional versions of the FAA‘s amended approach procedures. Because timeliness is a threshold issue, we address the FAA‘s motion first.
II
“Federal law requires that petitions seeking review of FAA actions be filed within sixty days of the agency‘s final order unless the petitioner had ‘reasonable grounds’ for delay.” Citizens Ass‘n of Georgetown v. FAA, 896 F.3d 425, 427 (D.C. Cir. 2018) (quoting
This part of our review is straightforward because the issue is identical to the issue we confronted in Citizens Ass‘n of Georgetown and City of Phoenix v. Huerta, 869 F.3d 963 (D.C. Cir. 2017). In those cases, we held that the FAA‘s action became final upon publication of the updated flight routes. See Citizens Ass‘n of Georgetown, 896 F.3d at 433; City of Phoenix, 869 F.3d at 969. Here, the RNAV RNP and LDA Z approaches were published in April 2015 and the River Visual approach was published in December 2015. Notwithstanding the State‘s argument that the FAA delayed publishing the first two amendments, it is undisputed that all three amendments were final by December 2015. See Pet‘r‘s Br. 16-17.
“Filing deadlines, replete throughout the United States Code, promote prompt and final judicial review of agency decisions and ensure that agencies and affected parties
We have previously found reasonable grounds for delay in few cases. First, in Paralyzed Veterans of Am. v. Civil Aeronautics Bd., 752 F.2d 694 (D.C. Cir. 1985), rev‘d on other grounds, 477 U.S. 597 (1986), we found timely a petition filed six months after the agency‘s final rule—i.e., roughly four months late—because the agency “explicitly left its rulemaking docket open in order to receive additional comments from the public,” id. at 705 n.82. Moreover, that petition was filed within sixty days of the agency‘s amended rule. Id. Next, in Safe Extensions, Inc. v. FAA, 509 F.3d 593 (D.C. Cir. 2007), we found reasonable grounds for delay when, following an “uproar” in the affected industry, the FAA told the petitioner and others to “ignore” its order, id. at 603. Most recently, in City of Phoenix—the precedent on which the State chiefly relies—we found reasonable grounds for filing a petition roughly six months outside the statutory window. 869 F.3d at 970. Maryland argues that a “similar fact pattern [to City of Phoenix] exists here” because the FAA “immediately signaled that it was willing to work with the [Working] Group on possible revisions” as soon as the new approaches were implemented. Pet‘r‘s Br. 38-39. The State argues that “petitioning for review soon after the . . . order might have shut down dialogue between the petitioners and the agency” and that treating its petition as untimely would “punish the petitioners for treating litigation as a last rather than a first resort.” City of Phoenix, 869 F.3d at 970; see also Pet‘r‘s Br. 37-38.
Granted, in City of Phoenix the FAA did not expressly cast doubt on the finality of its order as it did in Paralyzed Veterans and Safe Extensions. And there, as here, the FAA displayed a “pattern” of “serial promises” that it was considering the petitioner‘s noise concerns after altering the flight paths. City of Phoenix, 869 F.3d at 970. But these similarities do not save the State‘s petition. The key distinction between this case and City of Phoenix is the FAA‘s near constant engagement with petitioner City of Phoenix throughout the period between the new flight paths’ implementation and the City‘s late petition. In City of Phoenix we emphasized that:
The FAA repeatedly communicated—in an October public meeting, in a November letter, in a December public meeting, in a January letter, in a February decision to reconvene the Working Group, in an April letter, and in a May meeting with city officials—that the agency was looking into the noise problem, was open to fixing the issue, and wanted to work with the City and others to find a solution.
Id. (emphases added). With one exception, each month the FAA expressed its commitment to fix the noise problem between its September order and the June petition. “This pattern would certainly have led reasonable observers to think the FAA might fix the noise problem without being forced to do so by a court.” Id. In City of Phoenix, we worried that rigidly enforcing the deadline “would encourage the FAA to promise to fix a problem just long enough for sixty days to lapse and then to argue that the resulting petitions were untimely.” Id.
Although reasonable grounds for delay can exist if an agency‘s words and actions reasonably call into question the finality of its action, a petitioner cannot wait indefinitely for an unresponsive agency, decide that “cooperation” has ceased and the sixty-day review period has begun and finally petition for review over two years out of time, as the State did here. See Pet‘r‘s Br. 24-25 (“Given the uncertainty caused by the FAA‘s lack of response, and to preserve its ability to challenge the FAA‘s lack of environmental analysis before amending the Runway 19 approach procedures, Maryland filed a petition for review . . . .“); see also Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905, 912 (D.C. Cir. 1985) (“[I]t is the responsibility of petitioners to file for review within the period set by Congress.“). Indeed, if not for the FAA‘s terse reply to Governor Hogan‘s letter in 2018, the State‘s theory suggests that the sixty-day deadline may still not have expired, more than four years after the approaches were altered. Notwithstanding City of Phoenix incrementally expanded “reasonable grounds,” it did not open the floodgates to petitions filed years after final agency action. Because the State‘s delay was extreme, it lacks reasonable grounds for missing the sixty-day deadline and its petition is therefore untimely.
Finally, we note that here, as in City of Phoenix and Citizens Ass‘n of Georgetown, “[t]he FAA‘s efforts were hardly a model of sound agency practice.” Citizens Ass‘n of Georgetown, 896 F.3d at 436. In each of these cases, the FAA appears to have given short shrift to the required environmental analyses and, in City of Phoenix—the only timely petition of the three—we said so. See 869 F.3d at 970-75. The sixty-day window prescribed by
For the foregoing reasons, we dismiss the State‘s petition as untimely and deny its motion to amend as moot.
So ordered.