Opposition Brief — Department of Transportation v. Air Transport Ass'n of America

Supreme Court, U.S.

FILED

y Dil 5 1999

7 JOSEPH F. SPasno., me

No. 90-605 M1 =ERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

UNITED STATES DEPARTMENT OF

TRANSPORTATION, et al.,

=) Petitioners,

AIR TRANSPORT ASSOCIATION OF AMERICA, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF RESPONDENT

AIR TRANSPORT ASSOCIATION OF AMERICA

IN OPPOSITION TO THE PETITION

FOR A WRIT OF CERTIORARI

MICHAEL S. SUNDERMEYER

KEVIN J. HASSON *

WILLIAMS & CONNOLLY

839 17th Street, N.W.

Washington, D.C. 20006

(202) 331-5000

December 5, 1990 * Counsel of Record

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Whether the government’s challenge to the court

of appeals decision, which required the Federal Avia-

tion Administration to issue Rules of Practice for

its Civil Penalty Proceedings only after notice and

comment under the Administrative Procedure Act,

still presents a justiciable case or controversy, even

though the government (1) has fully complied with

the court of appeals’ judgment by issuing a Final

Rule that was subject to notice and comment, and

(2) has not reserved any right or stated any desire

to rescind that Final Rule? If so,

2. Whether FAA’s comprehensive Rules of Prac-

tice in Civil Penalty Proceedings were subject to the

notice-and-comment requirements of the Administra-

tive Procedure Act?

(i)

TABLE OF CONTENTS

Page

ge > o_ 5 Ne i

ee gy | iv

COUNTER-STATEMENT OF THE CASE . 1

REASONS FOR DENYING THE PETITION ............ 4

aa ccecdacencipnrgeiiansicenamionipiinasittaenekeyensseniee 9

(iii)

iv

TABLE OF AUTHORITIES

CASES: Page

Baker v. Carr, 369 U.S. 186 (1962) ................02....... 7

Chemical Manufacturers Association v. National

Resources Defense Council, Inc., 470 U.S. 116

RESIS NR Cas OT Ce ACO oe 4,5,6

City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S.

SRR Te neat Ril Rte Aree en 5, 6

Cornelius V. N.A.A.C.P. Legal Defense and Educa-

tion Fund, Inc., 473 U.S. 788 (1985) ........2.0000..... 4

County of Los Angeles v. Davis, 440 U.S. 625

RES ARIME ies Se set a are Pec PS a en eee 5

Deakins v. Monaghan, 484 U.S. 193 (1988) .......... 4

Hall v. Beals, 396 U.S. 45 (1969) .......0002000. ee. 6

Honig V. Doe, 484 U.S. 305 (1988) 2.00.20... 02. 4

Maher Vv. Roe, 482 U.S. 464 (1977) ......000.....2202200.--- 4

Playter v. FAA, No. 90-3420 (6th Cir.) .................. 9

Princeton University v. Schmidt, 455 U.S. 100

i iain cain Unacinan nabddelgtvermaguiniiacorneiamadanes 4, 5,6

Southern California Edison Co. v. FERC, 770 F.2d

On di ecsniseaculaniids 8

CONSTITUTIONAL PROVISIONS:

a sctshannneiun 4

ADMINISTRATIVE MATERIALS:

55 Fed. Reg. 7980 (March 6, 1990) _....-.- 2,5

55 Fed. Reg. 15,110 (April 20, 1990) _... 2, 6

55 Fed. Reg. 15,134 (April 20, 1990) —.............. eatiake 3

55 Fed. Reg. 27,548 (July 3, 1990) ..........000 3, 6

IN THE

Suprenw Court of the United States

OCTOBER TERM, 1990

No. 90-605

UNITED STATES DEPARTMENT OF

TRANSPORTATION, et al.,

- Petitioners,

AIR TRANSPORT ASSOCIATION OF AMERICA, et al.,

Respondents. -

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF RESPONDENT

AIR TRANSPORT ASSOCIATION OF AMERICA

IN OPPOSITION TO THE PETITION

FOR A WRIT OF CERTIORARI

This brief is submitted on behalf of respondent

Air Transport Association of America in opposition

to the United States Department of Transportation’s

petition for a writ of certiorari.’

COUNTER-STATEMENT OF THE CASE

The government’s statement of the case is accurate

as far as it goes. It notes, for example, that prior to

1 Respondent Air Transport Association of America is

advised that the respondent-intervenors concur with this

Brief and will not file separately.

2

the court of appeals’ issuance of its opinion in this

case, the Federal Aviation Administration (“FAA’’)

had already initiated a proposed rulemaking that

published, for notice and comment, many of the rules

at issue here.

The government nevertheless omits an important

fact. FAA initiated that rulemaking procedure en-

tirely independently of this action and wholly out of

deference to the Congress and the Administrative

Conference of the United States. As FAA stated in

its Notice of Proposed Rulemaking, that notice was

“intended to fulfill a commitment made by the agency

to the members of the House Subcommittee on Public

Works and Transportation at [a] hearing held on

November 15, 1990.” 55 Fed. Reg. 7980 (March 6,

1990): At that hearing, the then-current rules of

practice had “received a significant amount of criti-

cism from the witnesses representing the aviation

community,” and “the nature and extent of that crit-

icism resuited in only a 4-month [Congressional] ex-

tension of FAA’s authority” to conduct civil penalty

proceedings. 55 Fed. Reg. at 7981.

That Congressional Committee was not, however,

the only governmental entity urging changes in the

Rules of Practice. The Committee on Adjudication

of the Administrative Conference of the United States

likewise recommended changes. And FAA was care-

ful to note that the changes it “proposed in the

[March 6th Notice of Proposed Rulemaking] and

adopted herein addressed the procedural modifications

suggested by the Committee on Adjudication.” 55

Fed. Reg. 15,110-15,111 (April 20, 1990); see also

55 Fed. Reg. at 7981.

Finally, after the court of appeals’ judgment came

down, FAA did not seek a stay, either from the court

3

of appeals or from this Court. Rather, as the govern-

ment concedes, FAA fully complied with that judg-

ment by publishing notice and receiving comment on

a full set of amended proposed Rules of Practice for

Civil Penalty Proceedings. 55 Fed. Reg. 15,134

(April 20, 1990).° Then, as the government acknowl-

edges, “final, amended rules of practice were issued,

after the agency had comments received from the

public, on July 3, 1990.” Petition for a Writ of

Certiorari (‘‘Pet.”), at 7. See 55 Fed. Reg. 27,548

(July 3, 1990). Moreover, in publishing those Final

Rules, FAA again noted that it was thereby satisfy-

ing several objections made to its former rules of pro-

cedure by the Administrative Conference. See 55

Fed. Reg. at 27,549.

In sum, the government acknowledges that it has

already done everything required of it by the court

of appeals. It neglects to mention, however, that

those actions were taken partially out of obedience

to the court of appeals, partially to satisfy a promise

FAA had made to Congress, and partially out of

deference to the Administrative Conference. These

facts are important because they demonstrate the

overwhelming likelihood that FAA will not revive

its former, challenged rules even if it prevails in this

Court.

2 Indeed, FAA’s amended rules did more than just comply

with the Court of Appeals’ judgment. Even though the Court

of Appeals did not reach respondents’ substantive challenges

to the rules, FAA’s amended rules nevertheless cured all of

respondent’s substantive objections.

4

REASONS FOR DENYING THE PETITION

It is very doubtful that there is any longer a live

cause or controversy among the parties. Of course,

“tujnder Article Il] of the Constitution this Court

may only adjudicate actual, ongoing controversies.

That the dispute between the parties was very much

alive when suit was filed, or at the time the Court

of Appeals rendered its judgment, cannot substitute

for the actual case or controversy that an exercise of

this Court’s jurisdiction requires.” Honig v. Doe,

A484 U.S. 305, 317 (1988). See also Deakins vy. Mon-

aghan, 484 U.S. 193, 199 (1988).

1. Where, as here, a regulatory agency substan-

tially changes regulations that are under challenge,

and does not indicate any desire to revive its former

reyulations, the challenge is moot. Thus, in Prince-

ton University v. Schmidt, 455 U.S. 100 (1982) (per-

curiam), this Court held that an action challenging

certain University speech regulations that had since

been modified was moot because the University

showed no inclination to reinstate its former regula-

tions. 455 U.S. at 108; see City of Mesquite vy.

Aladdiws Castle, lnce., 455 U.S. 283, 296 n.* (White,

J., concurring in part and dissenting in part). Like-

wise, in Cornelius v. N.A.A.CLP. Legal Defense and

Kducation Fund, Inc., 473 U.S. 788 (1985), the

Court reached the merits of a challenge to superseded

regulations, which had been invalidated by the court

of appeals, only because “OPM?’s position before this

Court | was] consistent with a desire to reinstate its

prior regulations. Given these circumstances, the re-

vision of the regulations at issue dfid] not render

th[e] case moot.” 473 U.S. at 791 n.1) (citation

omitted). See also Maher vy. Roe, 432 U.S. 464, 468-

469 n.4 (1977) (revisions to challenged state regu-

5

lations, that were apparently made only “for the pur-

pose of interim compliance,” did not moot case “sub-

mitted on the theory that Connecticut desires to re-

instate the invalidated regulation’); Chemical Manu-

facturers Association vy. National Resources Defense

Council, Ine., 470 U.S. 116, 136 n.2 (1985) (Mar-

shall, J., dissenting in part) (joined by Blackmun,

Stevens and O’Connor, J.J.) (“EPA’s position be-

fore this Court is consistent with the view that it

desires to reinstate its prior reyulation. Given all of

these circumstances, the revision of the regulation

does not render this case moot.” ).”

The vovernment’s petition in this case, however,

‘carefully avoids making any representation that FAA

plans to revive its former revulations. It is easy to

see why. As the government acknowledges, many of

its changes to the Rules of Practice were made for

reasons entirely independent of this case. They were

“intended to fulfill a commitment made by the ayency

to the members of the House Subcommittee on Public

Works and ‘Transportation ” (5D Fed. Ree. at

7980), and were apparently also motivated in’ part

by certain criticisms made by the Administrative Con-

ference. See 55 bed. Reg. at 7981 (The agency has

... propose[d] changes to the rules of practice that

address the recommended revisions .. . contained in”

the draft report of the Administrative Conference. ) ;

* The Court views claims of mootness somewhat more skep-

tically when it is the same party that voluntarily changed its

requirements that seeks thereby to avoid federal court juris

diction. Cy. Princeton University, 495 U.S. at 103, with City

of Mesquite V. Aladdin’s Castle, Ine., 255 USS. 283, 288% &

nll (1982). Nevertheless, even that higher standard may

be met on a proper showing. See, e.g., County of Los

Angeles V, Davis, 440 U.S. 625, 631-634 (1979).

6

see also 55 Fed. Reg. at 15,110; 55 Fed. Reg. at

27,549.

FAA will, no doubt, honor its commitment to the

Congress regardless of how this Court might rule on

the decision below. Moreover, the rules revised in

response to Congress and out of deference to the Ad-

ministrative Conference are thoroughly integrated

with the revisions made out of obedience to the court

of appeals. It is therefore unlikely in the extreme

that FAA will offend Congress, the Administrative

Conference and good sense by unravelling its regu-

lations, discarding what this Court might permit it

to discard but retaining what it has promised Con-

gress it would keep.*

This case is therefore even more obviously moot

than Princeton University, supra. There, “Princeton

[merely] gave no indication that it desired to return

to the original regulatory scheme and would do so

absent a judicial barrier.” City of Mesquite, 455

U.S. at 296 n.* (White, J., concurring in part and

dissenting in part). Here, not only is there no in-

dication by FAA that it would return to its former

rules if permitted to do so, there is every indication

that it will not return to its original rules, regardless

of what this Court holds. Consequently, this case has

“lost its character as a preesnt, live controversy of

the kind that must exist if [courts] are to avoid ad-

visory opinions on abstract propositions of law.” Hall

v. Beals, 396 U.S. 45, 48 n.5 (1969).

2. Respondent no longer possesses “such a per-

sonal stake in the outcome of the controversy as to

4 Indeed, were the FAA now partially to repeal its new

regulations, its action would probably be vulnerable to chal-

lenge as arbitrary and capricious.

7

assure that concrete adverseness which sharpens the

presentation of issues upon which the court so largely

depends .. .” Baker v. Carr, 369 U.S. 186, 204

(1962). Respondent already has won all of what it

sued to obtain. It challenged eight parts of the Rules

of Practice. All eight parts were satisfactorily

changed in the 1990 notice-and-comment rulemakings.

Thus, respondent has nothing further to win in this

Court. As a practical matter, respondent has nothing

further to lose, either. Given the government’s ap-

parent lack of desire to revive its former regulations

even if it prevails, respondent will continue to enjoy

the benefits of the amended Rules of Practice regard-

less of whether it “wins” or “‘loses’’ here.

The government mistakenly claims that “at least

some” of the parties to the case “retain an interest in

[its] outcome.” Pet. 23 n.20.1.° That is so, the gov-

ernment argues, because some respondents are mem-

bership organizations or air carriers “that are par-

ties to [other] proceedings in which the Rules of

Practice were applied at some point.” /bid. But that

argument proves, at most, that those other proceed-

ings are not yet moot. The present case neither con-

cerns the substance of the regulations nor compre-

hends any civil penalty proceedings against anyone.

(Indeed, for that reason, the government argued be-

low that respondents’ substantive challenge was not

ripe. See Pet. App. at 7a).°

* The government concedes that the “case is moot as to

[the] individual[]” intervenors because the civil penalty pro-

ceedings previously pending against them have since been

dismissed. Pet. 23 n.20.

6 The court of appeals never reached respondents’ substan-

tive challenge to the regulations. See Pet. App. 7a.

8

All that remains of this case, therefore, is the gov-

ernment’s philosophical disagreement with that por-

tion of the court of appeals’ judgment with which it

has already fully and finally complied—the court’s

procedural ruling that whatever Rules of Practice

FAA promulgated had to be subject to notice-and-

comment under the A.P.A. That abstract legal ques-

tion, which so fascinates the government, is of little

interest to respondent. Respondent’s concern through-

out this litigation has been with the swbstantive pro-

visions of the Rules of Practice. Now that FAA has

revised the Rules, respondent is fully satisfied.

3. The government’s argument that there is a

split among the circuits is similarly rarified. The

government does not claim that there is a split among

the courts of appeals over either the substance of

FAA’s Rules of Practice or over whether their issu-

ance required notice and hearing. Rather, the gov-

ernment points to a “square conflict” with Southern

California Edison Co. v. FERC, 770 F.2d 779 (9th

Cir. 1985), which held that a different provision of

a different regulation—one concerned with the set-

ting of utility rates—was not subject to notice-

and-comment rulemaking. The conflict exists, the gov-

ernment explains, because the court of appeals in

Southern California Edison rejected an argument un-

der the A.P.A. similar to one the court of appeals

accepted in this case.

Even assuming that this analytical divergence—

which the government concedes is at least 11 years

old (Pet. 20)-——requires resolution by this Court,’

7 As another indication of how “square” and “important”

the supposed conflict is, the government did not even cite

Southern California Edison to the court of appeals.

9

any such resolutions should await a true case or con-

troversy that properly presents the question. If the

government is correct in its prediction of the number

of pending actions potentially affected by the court of

appeals decision (Pet. 21-23), it should have little

difficulty bringing an appropriate and live case to

this Court’s attention.“

CONCLUSION

For the stated reasons, the petition should be

denied.

Respectfully submitted,

MICHAEL S. SUNDERMEYER

KEVIN J. HASSON *

WILLIAMS & CONNOLLY

839 17th Street, N.W.

Washington, D.C. 20006

(202) 331-5000

December 5, 1990 * Counsel of Record

* Indeed, according to the government’s petition, one such

case has already been fully briefed in the Sixth Circuit:

Playter v. F.A.A., No. 90-3420. See Pet. at 22 n.19.