The Tenth Circuit Court of Appeals issued its opinion in Tulsa Airports Improvement Trust v. Federal Aviation Administration on Friday, October 14, 2016.
Tulsa Airports Improvement Trust (TAIT) has been working to reduce noise from the Tulsa airport through grants from the Federal Aviation Administration (FAA). In 2002, while waiting for some FAA grants to go through, TAIT instructed its contractors to place projects on hold. As a result, some contractors terminated their contracts or demanded increases, causing TAIT to pay them approximately $700,000. TAIT sought reimbursement from the FAA. The FAA initially reimbursed TAIT, but then demanded repayment of approximately $656,000, finding the costs were not allowable under the grants. TAIT repaid the FAA, but in 2010, TAIT sought reconsideration, and the FAA provided reimbursement for approximately $559,000.
In October 2012, TAIT informed the FAA that it had reviewed the remaining unpaid expenses and had found several categories that it believed were eligible for reimbursement. The FAA responded on October 24, 2012, that it had reviewed the information and could not make a favorable determination. TAIT appealed to the FAA’s Associate Administrator for Airports on December 6, 2012, and on December 31, 2012, the FAA issued a letter stating that the FAA was unable to find potentially eligible costs that had not been reimbursed, and stating that TAIT should submit any further information to the FAA. TAIT did not respond to the letter.
On November 14, 2013, TAIT filed a breach of contract action in the Court of Federal Claims, invoking jurisdiction under the Tucker Act and arguing that the FAA had wrongfully determined the payments in question were not allowable grant costs. The Court of Federal Claims found that it did not have subject matter jurisdiction because 49 U.S.C. § 46110 or 49 U.S.C. § 47111 vested exclusive jurisdiction in the United States Court of Appeals, and transferred the case to the Tenth Circuit. The Tenth Circuit considered it a petition for review of agency action.
The Tenth Circuit concluded that § 47111 did not apply, because it only applies to the withholding of payments that are determined to be allowable. Since the payments in question were never determined to be allowable, § 46110 governed review. The Tenth Circuit next found that the December 31, 2012, letter from the FAA was a final order. The letter constituted a final determination that the costs were not allowable, and although the FAA invited TAIT to submit further information for review, that did not affect the finality of the letter.
The Tenth Circuit then concluded that TAIT’s appeal was not timely filed. TAIT had sixty days to file an appeal, but did not do so until eight months after the expiration of the statutory period. TAIT did not offer any reasonable grounds to justify its delay. The Tenth Circuit noted that agency-created confusion had been recognized in some circuits as a basis for justifying delay, but in this case there was no agency-created confusion. The Tenth Circuit agreed with the D.C. Circuit that parties should assume finality in the face of ambiguity and file protectively for review.
The Tenth Circuit dismissed the appeal as not timely filed.