On October 14, 2016, in Tulsa Airports Improvement Trust v. Fed. Aviation Admin., the US Court of Appeals for the Tenth Circuit held, as a matter of first impression, that a letter from an agency can constitute a final order, triggering time limits for judicial review ( (10th Cir. Oct. 14, 2016)). The court also noted that if the agency's letter is ambiguous, the appealing party should assume finality in the face of ambiguity and file protectively for judicial review.

In the 1990s, the Tulsa Airports Improvement Trust (TAIT) began working to reduce noise caused by the Tulsa International Airport. The Federal Aviation Administration (FAA) was largely responsible for funding these noise reduction efforts. In 2002, while waiting for grant approval from the FAA, TAIT requested its contractors to place some projects on hold. When TAIT eventually received reimbursements from the FAA, the FAA asked TAIT to return funds that were attributable to contract delay or escalation costs, which were not allowable under the grants.

TAIT requested reconsideration and the FAA's Southwest Region responded that it could not make a favorable determination of additional allowable costs. TAIT appealed to the FAA's Associate Administrator for Airports. The Associate Administrator reiterated the Southwest Region's finding and issued a letter to TAIT.

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)). TAIT alleged that the FAA had wrongfully determined that the payments in question were not allowable grant costs. 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 US court of appeals. Accordingly, it transferred the case to the Tenth Circuit.

The Tenth Circuit held that the FAA Associate Administrator's letter to TAIT constituted a final order. Borrowing the reasoning of its sister circuits, the Tenth Circuit held that an order under 49 U.S.C. § 46110 is final if it:

Here, the Administrator's letter detailed the requests and the FAA's responses, including the various requests, reviews, grants, and denials over the preceding ten years. There was no indication in the letter or in the record that any additional process on the FAA's part was to follow.

Because TAIT's petition for review of agency action was not timely filed, the Tenth Circuit dismissed the action. Some courts have recognized agency-created confusion as a reason to find a delay in filing to be reasonable. However, no such confusion existed in this case. The Tenth Circuit cautioned practitioners to "assume finality in the face of ambiguity and file protectively for judicial review."