noting that “[t]he interest in postponing review is strong if the agency position whose validity is in issue is not in fact the agency’s final position,” and that “[i]f the position is likely to be abandoned or modified before it is actually put into effect, then its review wastes the court’s time and interferes with the process by which the 20210711-CA 8 2022 UT App 123 Tooele County v. Erda Community Assoc. agency is attempting to reach a final decision”
How later courts described this case
- noting that “[t]he interest in postponing review is strong if the agency position whose validity is in issue is not in fact the agency’s final position,” and that “[i]f the position is likely to be abandoned or modified before it is actually put into effect, then its review wastes the court’s time and interferes with the process by which the 20210711-CA 8 2022 UT App 123 Tooele County v. Erda Community Assoc. agency is attempting to reach a final decision”
- en banc only on the ripeness issue
- if agency position likely to be abandoned or modified before put into effect, court review interferes with process by which agency is attempting to reach final determination
- if interests of those who seek review outweigh interests of court and agency in postponing review, question is ripe for review
Written by the judges who cited it.
The opinion
J. SKELLY WRIGHT, Circuit Judge
(dissenting):
I regret my inability to join the opinion of the court or the result it reaches.
The issue raised in Appeal No. 73-1714 appears to be moot. With respect to the suspension order there challenged, .the six-month maximum period of suspension permitted by Section 1002(g) of the Act, 49 U.S.C. § 1482 (g) (1970), has expired. In any event, in my judgment this court does not have jurisdiction to review the suspension order. See United States v. SCRAP, 412 U.S. 669 , 93 S.Ct. 2405 , 37 L.Ed.2d 254 (1973); Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658 , 83 S.Ct. 984 , 10 L.Ed.2d 52 (1963); compare Moss v. CAB, 139 U.S.App.D.C. 150 , 430 F.2d 891 (1970).
Appeal No. 73—1718 challenges the Board’s Phase 6A decision which is described in detail in the court’s opinion. But the Phase 6A decision is merely a statement of general policy for future application of an ad hoc basis. We cannot review the application of that policy to petitioner until we have before us the Board’s final order stemming from the investigation in which it entered the now expired suspension order (the subject of Appeal No. 73-1714). Until then, there is no “administrative decision [which] has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148-149 , 87 S.Ct. 1507, 1515 , 18 L.Ed.2d 681 (1967). At that time judicial review will be available at the instance of any party aggrieved by the order. “Such review will provide an adequate forum for testing the regulation [here policy] in a concrete situation * * * where more light may be thrown on the * * * statutory and practical justifications for the regulation.” Toilet Goods Assn. v. Gardner, 387 U.S. 158, 165-166 , 87 S.Ct. 1520, 1525 , 18 L.Ed.2d 697 (1967). Under the circumstances, in my judgment the Board’s statement of general policy announced in its Phase 6A decision is not ripe for review.
I respectfully dissent.
Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVEN-THAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.
ORDER
PER CURIAM.
On consideration of respondent’s petition for rehearing and suggestion for rehearing en banc, it is
Ordered by the Court en banc that the above entitled cases shall be reheard by the Court sitting en banc. It is
Further ordered by the Court en banc, sua sponte, that the opinions and judgment filed in the above entitled cases on November 7, 1974 are hereby vacated.