UNITED STATES DEPARTMENT OF TRANSPORTATION, ET AL., PETITIONERS V.
AIR TRANSPORT ASSOCIATION OF AMERICA, ET AL.

   No. 90-605

   In The Supreme Court Of The United States

   October Term, 1990

   On Writ Of Certiorari To The United States Court Of Appeals For The
District Of Columbia Circuit

   Memorandum Of Petitioners In Response To Respondents' Suggestion Of
Mootness

   Respondents have filed a memorandum suggesting that this case is
moot.  In view of respondents' representation that neither they nor
their members have an interest in challenging the validity of the
rules at issue in this or any other proceeding, and their expressed
willingness to accept an order vacating the court of appeals' judgment
and remanding with a direction to dismiss the petition for review with
prejudice, we agree that the case is now moot.

   In this case, acting on respondents' petition for review, the court
of appeals invalidated Rules of Practice applicable in civil penalty
proceedings conducted by the Federal Aviation Administration (Pet.
App. 33a-91a), on the ground that the regulations had not been issued
in accordance with the notice-and-comment requirement of the
Administrative Procedure Act, 5 U.S.C. 553(b).  The petition for a
writ of certiorari sought further review of the question whether the
Rules of Practice fell within the exception to that requirement for
"rules of agency organization, procedure, or practice" (5 U.S.C.
553(b)(A)).

   Following the entry of the court of appeals' judgment, the FAA
completed a rulemaking amending the rules in certain respects and,
after providing notice and an opportunity for comment, repromulgated
the rules in their entirety.  See Pet. 7, 21-23.  In light of these
events, respondents' brief in oppositin argued that the case had
become moot.  ATA Br. in Opp. 1-9.  In our reply brief, we argued that
because respondents or their members could invoke the court of
appeals' judment in seeking to invalidate penalties assessed in
proceedings conducted in some part under the original rules, there was
a continuing controversy as to those rules' validity.  Reply Br. 2-5.
We suggested, however, that representations by the respondents along
the lines indicated by Frank v. Minnesota Newspaper Ass'n, Inc., 490
U.S. 225 (1989), and Deakins v. Monaghan, 484 U.S. 193, 199-200 & n.4
(1988), would render the case moot.  Reply Br. 6-7.  This Court
granted certiorari.

   Although respondents did not undertake to make such representations
prior to this Court's granting the petition for a writ of certiorari,
they have now done so in their memorandum suggesting mootness.  The
respondents have advised the Court that they have no further interest
in the court of appeals' judgment;  that they no longer seek judicial
relief with regard to the original rules;  that respondents (and
members of those respondents that have pursued this case on behalf of
their members) have no interest in challenging the validity of the
original rules now or in the future, on grounds advanced in the court
of appeals, in individual penalty proceedings conducted in any part
under the original rules or in cases seeking judicial review of
penalties assessed in such proceedings;  and that respondents do not
oppose vacation of the court of appeals' judgment and dismissal of
their petition for review with prejudice.

   On the basis of those unequivocal representations, we agree that
the case is now moot.  We emphasize that our position is based, in
particular, on respondents' willingness to accept the dismissal of
their petition for review with prejudice.  That was the disposition
that this Court directed in Deakins v. Monaghan, 484 U.S. at 200 &
n.4, 204, in a similar situation.  As in Deakins, a dismissal with
prejudice is necessary to protect the government against the
possibility that respondents themselves or members of those
respondents that have proceeded in a representative capacity could, in
some other proceeding, assert the claims raised by the petition for
review.

                              CONCLUSION

   The judgment of the court of appeals should be vacated and the case
should be remanded to the court of appeals with a direction to dismiss
the petition for review with prejudice.

   Respectfully submitted.

   JOHN G. ROBERTS, JR.

      Acting Solicitor General /*/

   FEBRUARY 1991

   /*/ The Solicitor General is disqualified in this case.