Air Transport Ass'n of America v. Department of Transp., 89-1195
| Decision Date | 04 June 1991 |
| Docket Number | No. 89-1195,89-1195 |
| Citation | 933 F.2d 1043 |
| Parties | AIR TRANSPORT ASSOCIATION OF AMERICA, Petitioner, v. DEPARTMENT OF TRANSPORTATION; Samuel Skinner, Secretary of Transportation; Federal Aviation Administration; and James B. Busey, Administrator, Respondents. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Remand from the United States Supreme Court.
Before MIKVA, Chief Judge, and EDWARDS and SILBERMAN, Circuit Judges.
ORDERED, by the Court, on its own motion, that the opinions filed herein on April 13, 1990, 900 F.2d 369, be, and the same hereby are, vacated. It is
FURTHER ORDERED, by the Court, on its own motion, that the petition for review is dismissed with prejudice as moot.
The Clerk is directed to issue a certified copy of this order to respondent, in lieu of a formal mandate.
A separate concurring statement filed by Circuit Judge SILBERMAN is attached.
I agree that the case is now moot because the Air Transport Association (ATA) indicates that it and its members will no longer challenge the rules at issue, but wish to add a few words about the way it became moot so that those interested in the matter will understand what occurred. This case, it will be recalled, involved a challenge to the procedures by which the Department of Transportation (DOT) promulgated certain temporary regulations which were due to expire shortly after the argument date before this court. The government moved to dismiss before oral argument, maintaining that the impending lapse of the temporary regulations made the case inappropriate for our consideration. In response to questions from the court along this line, however, counsel for ATA stated that
[t]he point ... is that there are cases in the system [that are governed by the temporary regulations] now.... We are at the beginning of this procedure.... Of some 4,800 cases, I believe 25 have reached final hearing.... Others are coming up for a hearing. The number of cases in the system, and the fact that many of them have not gone very far, it seems to me, indicates that this is a good opportunity for the court to resolve the facial challenge so that we can get this program right....
When the government petitioned for certiorari, the ATA switched and adopted, in its brief in opposition, the argument the government had made before us--that the by-then lapse of the temporary regulations and DOT's promulgation of final...
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