Khodara Environmental, Inc. v. Beckman

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

1-17-2001

Khodara Env Inc v. Beckman

Precedential or Non-Precedential:

Docket 99-3458, 99-3465 & 99-3475

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Filed January 17, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 99-3458, 99-3465, 99-3475

KHODARA ENVIRONMENTAL, INC.,

GENERAL PARTNER, ON BEHALF OF EAGLE

ENVIRONMENTAL, L.P.

v.

STEVEN BECKMAN;

FEDERAL AVIATION ADMINISTRATION;

CLEARFIELD-JEFFERSON COUNTIES REGIONAL

AIRPORT AUTHORITY; DONALD R. JOHNSON; P AUL

SEKULA; WILLIAM MIKSICH; FREDERICK G. MURRAY;

TIM MORGAN; ROBERT E. REITZ; HENRY DEIBLE; PAUL

MCMILLEN; MARK MCKINLEY; JANE F. GARVEY

JEFFERSON COUNTY; PINE CREEK TOWNSHIP

(Intervenor-defendants in D.C.)

Federal Aviation Administration,

Appellant in No. 99-3458

Khodara Environmental, Inc., general partner

acting on behalf of Eagle Environmental, L.P .,

(collectively "Eagle"),

Appellant in No. 99-3465

Steven Beckman,

Appellant in No. 99-3475

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF PENNSYLVANIA

(Dist. Court No. 97-cv-00093E)

District Court Judge: Sean J. McLaughlin

Argued: February 28, 2000

Before: ALITO and STAPLETON, Cir cuit Judges, and

POLLAK, District Judge.*

(Opinion Filed: January 17, 2001)

DAVID W. OGDEN

Acting Assistant Attorney General

HARRY LITMAN

United States Attorney

MARK B. STERN

SCOTT R. McINTOSH (Argued)

0 Attorneys, Appellate Staff

Civil Division, Department of Justice

601 D Street N.W., Room 9550

Washington, DC 20530-0001

Counsel for Appellant Federal

Aviation Administration

JOHN P. KRILL, JR. (Argued)

CARLETON O. STROUSS

JACQUELINE JACKSON-DeGARCIA

JULIA M. GLENCER

Kirkpatrick & Lockhart LLP

240 North Third Street

Harrisburg, PA 17101

Counsel for Appellee/Cross-Appellant

Khodara Environmental, Inc.

_________________________________________________________________

* The Honorable Louis H. Pollak, Senior Judge of the United States

District Court for the Eastern District of Pennsylvania, sitting by

designation.

2

PAUL A. TUFANO

General Counsel

THADDEUS A. WEBER (Argued)

Assistant Counsel

Commonwealth of Pennsylvania

Department of Environmental

Protection

Northwest Regional Counsel

Meadville, PA 16335

Counsel for Appellant/Cross-Appellee

Steven Beckman

THOMAS L. WENGER (Argued)

STEVEN R. WILLIAMS

Wix, Wenger & Williams

508 North Second Street

Harrisburg, PA 17101

Counsel for Appellees Clearfield-

Jefferson Counties Regional Airport

Authority, Donald R. Johnson, Paul

Sekula, William Miksich, Frederick

G. Murray, Tim Morgan, Robert E.

Reitz, Henry Deible, Paul McMillen

and Mark McKinley

OPINION OF THE COURT

ALITO, Circuit Judge:

Eagle Environmental, L.P. ("Eagle"), a landfill developer,

brought both facial and as-applied challenges against a

federal statute regulating the placement of waste disposal

facilities near airports. The District Court struck down the

law as facially unconstitutional, holding that it was so

irrationally underinclusive as to violate equal pr otection.

While this appeal was pending, Congress r epealed the

challenged statute and replaced it with a substantially

broader regulatory scheme. We believe that this action has

mooted Eagle's claims regarding the old statute's facial

constitutionality, and accordingly vacate that portion of the

3

District Court's judgment. As to Eagle's as-applied

challenges, we affirm the District Court's grant of summary

judgment in favor of the defendants.

I.

A. The Happy Landing Landfill

The pertinent facts of this case are not in dispute.

Khodara Environmental, Inc., is the general partner of

Eagle, a limited partnership based in Englewood Clif fs, New

Jersey. Eagle owns approximately 680 acr es in Jefferson

County, Pennsylvania, on which it planned to develop a

solid waste disposal facility to be called the Happy Landing

Landfill. Happy Landing was intended to accept municipal

waste from primarily out-of-state producers. The Happy

Landing site is located approximately 5.25 miles from the

Dubois-Jefferson County Airport.

In 1990, Eagle began applying for the necessary landfill

permits from the Pennsylvania Department of

Environmental Protection ("PDEP"). 1 The PDEP initially

issued all four of the permits necessary for the construction

and operation of Happy Landing. After obtaining these

permits, Eagle began pre-construction by conducting

engineering surveys and installing monitoring wells.

In September 1996, however, the Pennsylvania Fish and

Boat Commission designated three streams near the Happy

Landing site as wild trout streams. Based on this

designation, the PDEP determined that the landfill site

contained wetlands of "exceptional value" and that it

consequently should not have issued to Eagle the W ater

Obstruction and Encroachment Permit tofill these wetland

_________________________________________________________________

1. Under Pennsylvania law, before construction and operation of a

landfill may commence, the prospective operator must obtain the

necessary permits from the PDEP, including: a permit to authorize the

construction and operation of the landfill; a per mit to authorize the

discharge of treated industrial waste; a permit to authorize certain air

emissions related to the landfill's operation; and, if the proposed

construction adversely affects wetlands, a W ater Obstruction and

Encroachment Permit.

4

areas. Accordingly, on September 25, 1996, Steven

Beckman, the Regional Director of the Northwest Regional

Office of the PDEP, entered an administrative order

modifying Eagle's Water Obstruction and Encr oachment

Permit by revoking its authorization tofill certain wetland

areas. The order also suspended the r emainder of that

permit, as well as all of Eagle's other per mits. Eagle

appealed the revocation and suspension or der to the

Pennsylvania Environmental Hearing Boar d. The Board

denied Eagle's appeal, and the Pennsylvania

Commonwealth Court, in an Order filed on February 19,

2000, affirmed. See Khodara Envir onmental, L.P. v.

Department of Environmental Protection , No. 2704 C.D. 1998

(Pa. Commw. Ct. Feb. 19, 2000). Eagle's appeal of the

Commonwealth Court's order is currently pending, and

construction of Happy Landing has been suspended until

this controversy is resolved.

B. The 1996 Amendment

On October 9, 1996, Congress enacted the Federal

Aviation Reauthorization Act of 1996, Pub. L. No. 104-264,

110 Stat. 3213. Section 1220 of the Act (the "1996

Amendment") was drafted by Representatives Bud Schuster

and William Clinger--whose Pennsylvania districts

encompass Jefferson County and neighboring ar eas--and

was inserted into the Act during a conference committee

convened to debate an unrelated amendment. The 1996

Amendment provided:

(a) Landfills: [49 U.S.C.] Section 44718 is amended by

adding at the end the following:

(d) Landfills: For the purpose of enhancing aviation

safety, in a case in which 2 landfills have been

proposed to be constructed or established within

6 miles of a commercial service airport with

fewer than 50,000 enplanements per year, no

person shall construct or establish either landfill

if an official of the Federal Aviation

Administration has stated in writing within the

3-year period ending on the date of the

enactment that 1 of the landfills would be

5

incompatible with aircraft operations at the

airport, unless the landfill is already active on

the such date of enactment or the airport

operator agrees to the construction or

establishment of the landfill.

(b) Civil Penalties: [49 U.S.C.] Section 46301 is

amended by inserting 44718(d) after 44716, in

each of subsections (a)(1)(A), (d)(2), and (f)(1)(A)(i).

Pub. L. No. 104-264, S 1220(a), 110 Stat. 3213, 3286.

Eagle's proposed landfill fell within the statutory criteria.

Both Happy Landing and a second proposed waste disposal

facility, the Leatherwood Landfill,2 were located within six

miles of the DuBois-Jefferson County Airport, a commercial

airport with fewer than 50,000 enplanements per year .

Moreover, the FAA had issued a written determination

within the preceding three years that the Leatherwood

facility would be incompatible with aircraft operations at

the Airport.3 In fact, as the F AA has admitted on appeal,

_________________________________________________________________

2. In January 1991, Leatherwood, Inc., submitted a request to the PDEP

for permission to operate the Leatherwood Landfill near the Dubois-

Jefferson County Airport.

3. Leatherwood's proposed site was located within five miles of the

Airport and beneath the approach course of a runway. The FAA

concluded that this configuration would significantly increase the risk of

an aircraft bird strike and accordingly recommended that the PDEP deny

Leatherwood's permit application under a 1990 FAA regulation, which

classified the following landfill placements as incompatible with air

safety:

a. Waste disposal sites located within 10,000 feet of any runway

end used or planned to be used by turbine power ed aircraft.

b. Waste disposal sites located within 5,000 feet of any runway end

used only by piston powered aircraft.

c. Any waste disposal site located within a 5 mile radius of a

runway end that attracts or sustains hazardous bird movements

from feeding, water or roosting ar eas into, or across the runways

and/or approach and departure patter ns of aircraft.

(App. 2:196.) Because Happy Landing was located 5.25 miles away from

the Airport, however, it was not subject to F AA regulation prior to the

passage of the 1996 Amendment.

6

the 1996 Amendment's extremely narrow criteria affected

only Happy Landing, out of all the landfills in the country.4

On October 21, 1996, PDEP Regional Director Beckman

sent a letter to Eagle informing it that the 1996

Amendment "impacts the two proposed landfills in

Jefferson County, Eagle Environmental's Happy Landing

Landfill and Leatherwood, Inc.'s Jefferson Landfill." (App.

1:51.) The letter went on to explain that all of the permits

previously issued for the Leatherwood landfill had been

suspended in light of the new law. The letter further

advised that

[t]he Department's further action regar ding

reinstatement and/or modification of Eagle

Environmental's currently suspended per mits will be

governed by the same criteria applicable to

Leatherwood, Inc. Thus, if Eagle seeks reinstatement or

modification pursuant to the Department's September

25th Order, Eagle Environmental should also indicate

to the Department how it intends to comply with

Section 1220(a) of the Federal Aviation Reauthorization

Act of 1996.

(App. 1:51.)

On November 20, 1996, Eagle, acting pursuant to the

new statutory scheme, formally sought per mission from the

Clearfield-Jefferson Counties Regional Airport Authority

(the "Airport Authority")5 to construct and operate the

_________________________________________________________________

4. The 1996 Amendment's legislative history suggests that it was

intended to single out Happy Landing for regulation. After the Act was

signed into law, Rep. Shuster, the pr ovision's drafter, issued a press

release titled "SHUSTER AUTHORS PROVISION TO PROTECT DUBOIS

JEFFERSON COUNTY AIRPORT FROM LANDFILL," in which he stated

that "[m]y provision allows the local airport authority to stop these

landfills." (App. 3:497-98.) Another newspaper article quoted Rep.

Shuster as stating that the Amendment was enacted to enable the local

Airport Authority to block the landfill and that"[t]here's only one

airport

in the United States that fits [the Amendment's] definition." (App.

3:500.)

Commenting on the possibility of a legal challenge by Eagle, Rep.

Shuster stated that "if they go into court, you could tie them up for

years

and years and years." (App. 3:500.)

5. The Authority is a municipal authority for med under the laws of

Pennsylvania, and is entirely responsible for the operation of the Dubois-

7

landfill. On November 22, the Authority responded with a

letter notifying Eagle that it would accept written

documentation supporting Eagle's request for a period of 30

days. The Authority also informed Eagle that it would

accept documentation from other interested parties over the

same period and that all the submissions it r eceived would

be made public. On December 23, 1996, Eagle pr ovided the

Authority with 14 exhibits in support of its r equest. At a

public meeting held on January 24, 1997, the Authority's

Board of Directors unanimously denied Eagle's request.

C. The District Court Litigation

On April 25, 1997, Eagle filed the present action in the

United States District Court for the Wester n District of

Pennsylvania. Eagle's first three claims, which involved

facial constitutional challenges to the 1996 Amendment,

were asserted against the FAA, as well as against Barry

Valentine (the Acting Administrator of the F AA)6 and Steven

Beckman (the Regional Director of the PDEP) in their

official capacities.7 Count I of the Complaint alleged that

the 1996 Amendment worked an unconstitutional

delegation of federal authority to the local airport authority;

Count II attacked the Amendment as an unconstitutional

bill of attainder; and Count III challenged the law on the

ground that it violated Eagle's rights to equal protection

and due process under the Fifth and Fourteenth

Amendments. Count IV of the Complaint was dir ected

_________________________________________________________________

Jefferson County Airport. The Authority, acting through its Board of

Directors, is generally responsible for making decisions concerning the

administration of the Airport, including operations, airport safety, and

capital improvements.

6. On August 4, 1997, Jane F. Garvey was appointed FAA Administrator.

Garvey was substituted as a defendant pursuant to Federal Rule of Civil

Procedure 25(d)(1).

7. In its Complaint, Eagle originally asserted these claims against the

Airport Authority and its directors as well. The District Court, however,

held that the Airport Authority defendants wer e not proper parties to

Eagle's facial challenges to the 1996 Amendment, and Eagle has not

appealed this ruling.

8

against the Airport Authority and its directors 8 in their

individual and official capacities. This count asserted that

defendants' application of the 1996 Amendment violated

Eagle's constitutional rights to equal protection, procedural

and substantive due process, and freedom from the taking

of property without just compensation. Finally, Count V,

which Eagle asserted against all defendants, claimed that

the 1996 Amendment did not apply to Happy Landing as a

matter of statutory construction. Eagle sought declaratory

judgment on all counts, as well as prospective injunctive

relief and compensatory and punitive damages. In addition

to the previously mentioned parties, the District Court

granted Jefferson County and Pine Creek T ownship

permission to participate as intervenors in the case.

On May 16, 1997, defendant Beckman filed a motion to

dismiss the case, arguing that Eagle lacked standing and

that the case was not ripe. Specifically, Beckman argued

that Eagle could not demonstrate any injury arising from

the PDEP's letter of October 21, 1996, because, when the

letter was issued, Happy Landing's construction had

already been forestalled by the suspension of Eagle's state

permits. On September 23, 1997, the District Court denied

Beckman's motion, holding that a ruling on the

constitutionality of the 1996 Amendment would per mit

Eagle to make an informed decision on whether to expend

additional effort to pursue its appeal on the state permits.

Moreover, the court held that the PDEP had not foresworn

its intention to enforce the 1996 Amendment should Eagle's

permits be restored in its state court litigation.

Eagle subsequently filed a motion for partial summary

judgment as to Counts I, II, and III of its Complaint--the

facial constitutional challenges. The FAA and the

intervenors cross-moved for summary judgment on the

same counts. The Airport Authority and its Boar d members

moved for summary judgment as to Counts IV and V .

Beckman filed a motion in which he renewed his previous

arguments concerning standing and ripeness, and further

_________________________________________________________________

8. The Airport Authority's directors during the relevant period were Don

Johnson, Paul Sekula, William Miksich, Mark McKinley, Frederick

Murray, Tim Morgan, Robert Reitz, Henry Deible and Paul McMillen.

9

argued that he was entitled to summary judgment on the

basis of Eleventh Amendment immunity. The intervenors

also moved to dismiss on the grounds of mootness and lack

of ripeness.

On April 1, 1999, the District Court entered its final

judgment and order. See Khodara Environmental, Inc. v.

Beckman, 91 F. Supp. 2d 827 (W.D. Pa. 1999). At the

outset, the Court rejected the jurisdictional defenses raised

by Beckman and the intervenors and held that the 1996

Amendment, as a matter of statutory construction, applied

to Happy Landing. Turning to Eagle's constitutional

challenges, the Court held that the 1996 Amendment was

facially unconstitutional because it violated Eagle's right to

equal protection. Although the Court found that the

government had a legitimate interest in preventing aircraft

bird strikes, it found several aspects of the statute so

grossly under- and over-inclusive as to render the statutory

classification irrational. In particular, the Court saw no

rational justification for the provisions that: (1) limited the

ban to cases where exactly two landfills had been proposed;

(2) restricted the provision to airports with less than 50,000

annual emplanements; (3) covered only commer cial, and

not commuter, airports; and (4) limited the statute to purely

retrospective effect. In short, the Court found it irrational to

single out the Leatherwood and Happy Landing Landfills for

regulation, while permitting the operation of other similarly

situated landfills across the country. Because it held the

Amendment unconstitutional on equal protection grounds,

the Court did not find it necessary to addr ess Eagle's bill of

attainder or non-delegation challenges. Finally, the Court

granted summary judgment in favor of the Airport

Authority and its directors with respect to Eagle's "as

applied" constitutional claims (Count IV).

The FAA and Beckman appealed the Court's

determination that the 1996 Amendment was facially

unconstitutional. Eagle cross-appealed the grant of

summary judgment in favor of the Airport Authority

defendants on Count IV.

D. The 2000 Amendment

This Court took up the appeals and heard oral argument.

After oral argument, but before we had issued a judgment,

10

Congress enacted legislation substantially modifying the

1996 Amendment. On April 5, 2000, the President signed

into law the Wendell H. Ford Aviation Investment and

Reform Act for the 21st Century, Pub. L. No. 106-181, 114

Stat. 61 (2000). Section 503 of the Act (the "2000

Amendment") amended 49 U.S.C. S 44718(d) to read as

follows:

(d) LIMITATION ON CONSTRUCTION OF LANDFILLS.

--

(1) IN GENERAL.--No person shall construct or

establish a municipal solid waste landfill (as defined

in section 258.2 of title 40, Code of Federal

Regulations, as in effect on the date of the enactment

of this subsection) that receives putrescible waste (as

defined in section 257.3-8 of such title) within 6

miles of a public airport that has received grants

under chapter 471 and is primarily served by general

aviation aircraft and regularly scheduledflights of

aircraft designed for 60 passengers or less unless the

State aviation agency of the State in which the

airport is located requests that the Administrator of

the Federal Aviation Administration exempt the

landfill from the application of this subsection and

the Administrator determines that such exemption

would have no adverse impact on aviation safety.

(2) LIMITATION ON APPLICABILITY .--Paragraph (1)

shall not apply in the State of Alaska and shall not

apply to the construction, establishment, expansion,

or modification of, or to any other activity

undertaken with respect to, a municipal solid waste

landfill if the construction or establishment of the

landfill was commenced on or before the date of the

enactment of this subsection.

Pub. L. No. 106-181, S 503, 114 Stat. 61, 133.

The 2000 Amendment significantly broadened the scope

of the statute, thus resolving many of the District Court's

equal protection concerns. Unlike the challenged law, the

new statutory scheme does not work to single out the

Happy Landing site for exceptional treatment. In essence,

the amended statute creates a purely pr ospective six-mile

11

"safety zone" around all federally-funded (non-Alaskan)

airports with regularly scheduled flights of 60 passengers or

less. The amended statute also alleviates the non-delegation

and separation-of-powers concerns raised by the old law.

Before the District Court, Eagle argued that the 1996

Amendment's grant of exemption power to local airport

authorities violated Article I's requir ement of unitary

executive power. The amended statute, in contrast, grants

no statutory power to local authorities. Rather , the final

power to make exceptions is granted to the Administrator of

the FAA, who is an agent of the federal executive.

In light of the 2000 Amendment, the FAA hasfiled a

motion pursuant to Local Appellate Rule 27.4 to vacate the

District Court's judgment as moot and remand.

II.

A.

We turn first to the FAA's claim of mootness. Article III of

the Constitution grants the federal courts the power to

adjudicate only actual, ongoing cases or contr oversies.

"This case-or-controversy requir ement subsists through all

stages of federal judicial proceedings, trial and appellate."

Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990);

see also U.S. Bancorp Mortgage Co. v. Bonner Mall

Partnership, 513 U.S. 18, 21 (1994); Ivy Club v. Edwards,

943 F.2d 270, 275 (3d Cir. 1991). Our mootness

determination therefore turns on whether there remains, in

light of Congress's action, "a real and substantial

controversy admitting of specific relief through a decree of

conclusive character." New Rock Asset Partners, L.P. v.

Preferred Entity Advancements, Inc. , 101 F.3d 1492, 1496

(3d Cir. 1996) (quoting National Iranian Oil Co. v. Mapco

Int'l, Inc., 983 F.2d 485, 489 (3d Cir . 1992)).

We agree that the passage of the 2000 Amendment has

mooted Eagle's facial constitutional challenges to the 1996

Amendment. Under the circumstances present here, we

must "review the judgment of the district court in light of

the [the] law as it now stands, not as it stood when the

judgment below was entered." Dif fenderfer v. Central Baptist

12

Church, 404 U.S. 412, 414 (1972); see also Princeton Univ.

v. Schmid, 455 U.S. 100, 103 (1982) (per curiam); Naturist

Soc'y, Inc. v. Fillyaw, 958 F.2d 1515, 1520 (11th Cir. 1992);

Black United Fund of New Jersey, Inc. v. Kean, 763 F.2d

156, 160 (3d Cir. 1985). Black United Fund is instructive. In

that case, the plaintiff charity challenged a New Jersey

statute permitting the United Way--but not other charitable

organizations--to deduct voluntary contributions from the

salaries of government workers. The District Court found

the statute unconstitutionally discriminatory and enjoined

its operation. Pending appeal, the state repealed the

challenged law and replaced it with a new statute that

permitted voluntary payroll deductions for other charities

that met specified criteria. We held that the statutory

amendment mooted plaintiff 's claims:

We conclude, therefore, that the r epeal of the 1955

statute and the enactment of new legislation make it

inappropriate for us to affirm the district court's order

based on alleged deficiencies in the old Act. The raison

d'etre for the injunction no longer exists.

Black United Fund, 763 F.2d at 160. Moreover, we found

that the new legislation had substantially r esolved the

constitutional questions raised by the predecessor law:

[W]e note that the new Act has enlarged the group of

charitable organizations which may have access to

state facilities and establishes criteria which govern

eligibility. The legislation thus meets at least two of the

objections cited by the district court--the exclusivity

granted the United Way and the lack of standards for

determining which other groups may participate. . . .

To that extent, the new Act will give plaintif f

substantially the relief it sought in the district court.

Id. at 160-61.

Similar concerns inform our mootness decision here. The

scope of the 2000 Amendment is substantially br oader than

that of the challenged law. The restrictive criteria and

purely retrospective nature of the old statute--which the

District Court found irrationally underinclusive--effectively

limited its application only to the Happy Landing and

Leatherwood landfills. The new provision, however, applies

13

prospectively to a wide variety of landfills. Accordingly, we

believe that the 2000 Amendment is far less susceptible to

attack on equal protection or bill-of-attainder grounds.

Moreover, the new law places the power to make

exemptions in the hands of the FAA rather than the local

airport authority, thereby assuaging Eagle's unitary

executive concerns.

Simply put, a declaration of unconstitutionality or

injunction directed against the objectionable features of the

1996 Amendment would serve no purpose today. "Where a

law is amended so as to remove its challenged features, the

claim . . . becomes moot as to those features." Naturist

Soc'y, 958 F.2d at 1520; see also FW/PBS, Inc. v. City of

Dallas, 493 U.S. 215, 234 (1990).

Nor do Eagle's facial challenges fall within any r ecognized

exception to the mootness doctrine. In City of Mesquite v.

Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982), the

Supreme Court held that "a defendant's voluntary cessation

of a challenged practice does not deprive a federal court of

its power to determine the legality of the practice." Such

cases may fall within the mootness exception of injuries

that are "capable of repetition, yet evading review."

Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 514

(1911). We do not believe that this cir cumstance is present

here, however. As the Fourth Cir cuit has recently noted,

"statutory changes that discontinue a challenged practice

are `usually enough to render a case moot, even if the

legislature possesses the power to reenact the statute after

the lawsuit is dismissed.' " Valer o Terrestrial Corp. v. Paige,

211 F.3d 112, 116 (4th Cir. 2000) (quoting Native Village of

Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th Cir. 1994));

see also National Black Police Ass'n v. District of Columbia,

108 F.3d 346, 349 (D.C. Cir. 1997) ("the mere power to

reenact a challenged law is not a sufficient basis on which

a court can conclude that a reasonable expectation of

recurrence exists"). In this case,"[w]e have no grounds for

suspecting that [Congress] would attempt to reenact the

prior law." Thomas v. Fielder, 884 F .2d 990, 995-96 (7th

Cir. 1989). Accordingly, we hold that Counts I, II and III of

Eagle's Complaint--its facial attacks on the

constitutionality of the 1996 Amendment--ar e moot in light

14

of that law's repeal and replacement by the 2000

Amendment.

B.

We next address whether the District Court's holding that

the 1996 Amendment was facially unconstitutional is

subject to vacatur. Pursuant to 28 U.S.C.S 2106, we have

the power to vacate the judgment of a district court on

appeal. In arguing for vacatur, the F AA cites cases following

United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950),

which held that "[t]he established practice .. . in dealing

with a civil case from a court in the federal system which

has become moot while on its way here or pending our

decision on the merits is to reverse or vacate the judgment

below and remand with a direction to dismiss."

The Supreme Court, however, has explained that

Munsingwear does not set forth a categorical rule. In U.S.

Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S.

18, 23-25 (1994), the Court clarified that vacatur is an

equitable remedy rather than an automatic right. See, e.g.,

National Black Police, 108 F.3d at 346; Humphreys v. Drug

Enforcement Administration, 105 F.3d 112, 113-14 (3d Cir.

1996) ("Munsingwear should not be applied blindly, but

only after a consideration of the equities and the underlying

reasons for mootness."). In particular , U.S. Bancorp

emphasized that when mootness results fr om the voluntary

action of the party seeking relief from the judgment below,

vacatur should not be granted unless doing so would serve

the public interest. See U.S. Bancorp, 513 U.S. at 25-29. In

such cases, the Court explained, the public inter est in a

robust corpus of judicial precedent nor mally outweighs the

party's interest in relief from the judgment, "the losing

party having voluntarily forfeited his legal r emedy by the

ordinary processes of appeal or certiorari, thereby

surrendering his claim to the equitable r emedy of vacatur."

Id. at 29. "Thus, absent unusual circumstances, the

appellate vacatur decision under Bancorp is informed

almost entirely, if not entirely, by the twin considerations of

fault and public interest." Valero Terrestrial, 211 F.3d at

118.

15

U.S. Bancorp refused vacatur in a case in which the

losing party below mooted the action by settling pending

appeal. Today, we must decide whether this same

presumption against vacatur is appropriate when a

governmental appeal is mooted by legislative amendment.

The Court of Appeals for the District of Columbia Circuit

recently addressed this same question, and we find its

reasoning persuasive:

Clearly, the passage of new legislation repr esents

voluntary action, and thus on its face the Bancorp

presumption might seem to govern. W e believe,

however, that application of the Bancorp presumption

in this context is not required by the Bancorp opinion's

rationale and would be inappropriate, at least if there

is no evidence indicating that the legislation was

enacted in order to overturn an unfavorable precedent.

The rationale underlying the Bancorp pr esumption is

that litigants should not be able to manipulate the

judicial system by "roll[ing] the dice. . . in the district

court" and then "wash[ing] away" any"unfavorable

outcome" through use of settlement and vacatur. The

mere fact that a legislature has enacted legislation that

moots an appeal, without more, provides no grounds

for assuming that the legislature was motivated by

such a manipulative purpose. The legislature may act

out of reasons totally independent of the pending

lawsuit, or because the lawsuit has convinced it that

the existing law is flawed.

National Black Police, 108 F.3d at 351-52; see also Valero

Terrestrial, 211 F.3d at 120 (U.S. Bancorp counsels vacatur

where challenge is rendered moot by state's amendment of

challenged statute).

Eagle nevertheless argues that the recor d in this case

militates against vacatur, because the F AA "is a knowing

beneficiary of a legislative change backed by an illegitimate

motive--i.e., to frustrate an unfavorable judgment." We

cannot agree. Mindful of the fact that "legislative actions

are presumptively legitimate," we ar e "wary of impugning

the motivations that underlie a legislature's actions."

National Black Police, 108 F.3d at 352. Eagle's claim of

"persistent misuse of the legislative process" rings hollow.

16

There is no suggestion that Congress failed to follow

constitutionally prescribed procedur es in passing the 2000

Amendment. And, although Eagle argues that Congress's

actions represent an attempt to frustrate an adverse

judgment, the new legislation could just as cr edibly be

viewed as a commendable effort "to r epair what may have

been a constitutionally defective statute." American Library

Ass'n v. Bar, 956 F.2d 1178, 1185 (D.C. Cir. 1992). In

short, Eagle has presented no evidence to indicate that the

2000 Amendment represents "manipulation of the

legislative process" rather than "r esponsible lawmaking." Id.

Accordingly, we believe that equity would best be served

by vacating the District Court's judgment as to the facial

unconstitutionality of the 1996 Amendment.9

C.

Eagle's as-applied constitutional claims against the

Airport Authority and its directors, however , require a

different analysis. Pursuant to the 1996 Amendment, Eagle

requested that the Authority approve construction and

operation of Happy Landing. Count IV of Eagle's Complaint

alleged that the Authority and its directors, in denying that

request, violated Eagle's rights to procedural and

substantive due process, equal protection, and freedom

from taking without just compensation. The District Court

granted summary judgment in favor of the defendants on

these claims, and on appeal, Eagle contests that District

Court's decision with respect to the pr ocedural and

substantive due process claims.

We do not believe that the passage of the 2000

Amendment has mooted these claims. Unlike Eagle's facial

constitutional challenges, which sought only pr ospective

declaratory and injunctive relief,10 the due process claims

_________________________________________________________________

9. In so doing, we do not express any view as to the correctness of the

District Court's ruling on Eagle's equal protection claim regarding the

1996 Amendment or as to the validity of any of Eagle's other facial

challenges.

10. We recognize that Eagle's Complaint, on its face, includes a prayer

for compensatory and punitive damages as to each of its facial

17

set out in Count IV sought damages against the Authority

and its members. "A case is saved from mootness if a viable

claim for damages exists." National Iranian , 983 F.2d at

489. In Phillips v. Borough of Caper ed, 107 F.3d 164, 177

(3d Cir. 1997) (en banc), we held that the substitution of a

new, less restrictive adult bookstore or dinance for the

previous, more restrictive one did not moot plaintiffs'

S 1983 damages claim arising out of the application of the

prior ordinance. Similarly, in Ransom v. Maoris, 848 F.2d

398 (3d Cir. 1988), where plaintif fs challenged municipal

sewer and water service regulations, we held:

The plaintiffs further attempt to avoid the mooting of

their procedural due process claims by asserting that

the publication of new regulations, even if they now

satisfy the due process notice requir ements, does not

answer their claim of damages due to a deprivation of

notice prior to their publication and resulting from the

imperfection of liens. The plaintiffs ar e correct in their

contention that the issuance of the new regulations

does not moot this damage claim based on the alleged

constitutional notice defect prior to their publication.

Id. at 410; see also Naturist Soc'y, 958 F.2d at 1519 ("the

claim for damages saves from mootness the Society's

contention that the `old' park regulations were

unconstitutional as applied to it"). Eagle's claim for

damages for the past application of the 1996 Amendment

_________________________________________________________________

challenges. (App. 31, 33, 34.) In its supplemental briefing on the

mootness issue, however, Eagle admits that it has abandoned its

damages claims on these counts and at summary judgment only sought

declaratory and injunctive relief against the F AA and Beckman:

Eagle sued the FAA, in the person of Jane Harvey, and Steven

Beckman in their official capacities only, and did not seek damages

in conjunction with their actions. In Counts I, II and III, Eagle

sought to have the [1996 Amendment] declar ed unconstitutional (on

equal protection, bill of attainder or non-delegation grounds) and

the

FAA and Beckman enjoined from applying or enforcing it against

Eagle.

Eagle Letter Brief, May 24, 2000, at 2-3 (emphasis in original; citations

omitted).

18

invests it with a continuing, concrete stake in the outcome

of this litigation that has not been redr essed by the passage

of the 2000 Amendment. Therefore, we will address these

claims on the merits.

III.

We first consider Eagle's procedural due process claim.

Eagle complains that, although it was given the opportunity

to submit documentation in support of its application, it

was not given a chance "to review all infor mation received

by the Airport Authority and to submit responsive

comments." Khodara Reply Br. at 12. Eagle also complains

that it received no hearing before its application was

denied. Id. at 11.

The procedures followed by the Airport Authority were

not exemplary, but Pennsylvania law provided an avenue

for Eagle to contest the Authority's action. Under 2 Pa.

Cons. Stat. Ann. S 752, "[a]ny person aggrieved by an

adjudication of a local agency who has a dir ect interest in

such adjudication shall have the right to appeal therefrom

to the court vested with jurisdiction of such appeals by or

pursuant to Title 42 . . . ." The Airport Authority falls

within the definition of a "local agency,"11 and therefore

Eagle could have challenged the Authority's decision in the

state court system.

We need not decide here whether these pr ocedures would

be constitutionally sufficient if a favorable decision by the

Airport Authority would have enabled Eagle to begin

operation of the landfill immediately or within a short time

thereafter. Here, on September 25, 1996--almost four

months before the Airport Authority's adverse action--the

PDEP suspended Eagle's construction permits for Happy

Landing because the proposed site contained pr otected

wetlands. Both the Pennsylvania Environmental Hearing

_________________________________________________________________

11. A "local agency" is "[a] gover nment agency other than a

Commonwealth Agency." 2 Pa. Cons. Stat. Ann.S 101. The Clearfield-

Jefferson County Regional Airport Authority was created under 53 Pa.

Cons. Stat. Ann. S 47493. It is plainly a government agency but not an

agency of the Commonwealth itself.

19

Board and a state court have upheld this suspension,

which continues in effect pending Eagle's latest appeal.

Consequently, even if the Airport Authority had granted

Eagle permission to construct the landfill pursuant to the

1996 Amendment, Eagle would have been unable to do so

because of the suspension of the construction per mits.

Under these circumstances, the availability of review under

2 Pa. Cons. Stat. Ann. S 752 satisfied due process. Cf.

Cohen v. City of Philadelphia, 736 F.2d 88, 86 (3d Cir.

1984)(state may provide adequate due pr ocess when it

provides " `reasonable remedies to rectify a legal error

by a local administrative body' ") (citation omitted).

"[I]dentification of the specific dictates of [procedural] due

process requires consideration of thr ee distinct factors:

First, the private interest that will be af fected by the official

action; second, the risk of an erroneous deprivation of such

interest through the procedur es used, and the probable

value, if any, of additional or substitute pr ocedural

safeguards; and finally, the Government's interest,

including the function involved and the fiscal and

administrative burdens that the additional or substitute

procedural requirement would entail." Mathews v. Eldridge,

424 U.S. 319, 335 (1976). In this case, although Eagle had

a substantial interest in the development of its property as

a landfill, Eagle could not have developed the pr operty for

this landfill use until it obtained the necessary permits

from the PDEP. While Eagle was attempting to obtain those

permits, it could have contested the action of the Airport

Authority in the state courts. Thus, as a practical matter,

the adverse effects during the relevant time period of the

Airport Authority's action were not substantial. Similarly,

the risk of an erroneous deprivation of Eagle's property

interest in any practical sense was not gr eat. And because

Eagle presumably could have obtained state court review

before the Airport Authority's action had any substantial

practical bite, the comparative benefit of better procedures

at the administrative level was diminished. Under these

circumstances, we hold that Eagle's procedural due process

rights were not violated. This case dif fers greatly from the

typical case in which only post-deprivation pr ocess is

available.

20

Nor do we find a violation of Eagle's substantive due

process rights. Eagle's briefs do not ar gue that the Airport

Authority denied its application for a reason that is

" `tainted by improper motives.' " Nicholas v. Pennsylvania

State University, 227 F.3d 133, 139 (3d Cir. 2000)(citation

omitted). Rather, Eagle contends that "[t]he Airport

Authority's review was anything but car eful and

considered," that its decision was contrary to

"overwhelming evidence that the Happy Valley Landfill

posed no safety threat to the Airport," that"the Airport

Authority members were confused," and that they were

unable to articulate a basis for their decision. Khodara

Reply Br. at 13-15. Courts must exercise caution before

recognizing substantive due process claims. See, e.g.,

County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998);

Albright v. Oliver, 510 U.S. 266, 271(1994); Collins v. City of

Harker Heights, 503 U.S. 115, 125 (1992); Nicholas, 227

F.3d at 140; Fagan v. City of Vineland, 22 F.3d 1296, 1306

n.6 (3d Cir. 1994 (en banc). For purposes of discussion we

will assume that Eagle's hoped-for use of its Happy Landing

site as a landfill constituted a constitutionally protected

property interest. With this as pr edicate, it would seem that

Eagle's substantive due process challenge to the Airport

Authority's denial of Eagle's application goes to the manner

in which the Airport Authority arrived at its decision. The

core of Eagle's complaint is the contention that the Airport

Authority's decision was not rationally supported by

substantial evidence. But precisely this contention could

have been brought before a state court in the appellate

review of the Airport Authority's decision whose availability,

we have determined, satisfied the requirements of

procedural due process. Under these cir cumstances, we

conclude that the state court review which Eagle did not

elect to pursue constituted sufficient protection of Eagle's

asserted substantive due process rights.

IV.

For the foregoing reasons, Appeals No. 99-3458 and 99-

3475 are dismissed as moot, and that portion of the

District Court's judgment concerning the facial

constitutionality of the 1996 Amendment is vacated. The

21

District Court's grant of summary judgment in favor of the

Airport Authority and its directors is affir med. The case is

remanded for further proceedings consistent with this

opinion. On remand, Eagle should be affor ded the

opportunity to amend its pleadings so that the District

Court may have the opportunity to address any claims

regarding the 2000 Amendment.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

22