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
(concurring):
I concur in the court’s opinion in No. 73-1714.
As to No. 73-1718, the Civil Aeronautics Board has now made it clear that its seating configuration policy is final, and therefore judicially reviewable, by ruling in the Chicago-Los Angeles Fare Reductions Case that the policy “is not subject to review in this proceeding.” Order 74-10-27 at 3 (decided October 8, 1974). Under the circumstances I concur in the court’s opinion in No. 73-1718 that the seating configuration policy is ripe for review. However, in the Chicago-Los Angeles case the Board has stayed the effectiveness of its order and deferred action on an application for reconsideration apparently pending our decision in this case. I would instruct the panel to await the Board’s action on reconsideration before proceeding further. In this way the panel’s decision on the merits may be informed by the Board’s application of the policy to a concrete set of facts.