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 Petition For A Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit Reply Brief For The Petitioners Respondent ATA does not seriously challenge our showing that this case presents questions calling for this Court's attention. As we demonstrated in the petition, the court of appeals' decision disregards the plain language of the statute; conflicts with decisions from other courts of appeals; and breathes new life into the "substantial impact" test, a judicially-fashioned formulation that makes it impracticable for federal agencies to rely on the express APA exemption at issue. Rather than addressing the merits, ATA contends that the FAA's promulgation of amended rules has made this case moot. Br. in Opp. 4-8. ATA's mootness claim, however, ignores the potential future effect of the court of appeals' judgment, ATA's role as a representative party, and the nature of the present controversy. 1. In this case, the court of appeals struck down in their entirety the Rules of Practice that governed FAA civil penalty proceedings between September 7, 1988 -- the date those regulations became effective -- and April 13, 1990 -- the date of the court of appeals' judgment. During that 19-month period, the FAA issued 5860 notices of proposed civil penalty (the first step in a penalty proceeding); of those notices, over 1100 were issued to ATA members. In its decision, the court of appeals identified two arguments that the parties to these proceedings could raise to invalidate penalties assessed against them. First, the court suggested that penalty defendants whose cases had reached a final administrative determination prior to the court's judgment might "raise the procedural invalidity of the Rules as a ground for seeking review." Pet. App. 23a-24a. Second, the court observed that -- in any case in which the invalidated rules had been applied during any portion of the proceedings -- a penalty defendant would "be free to raise the defense that the FAA could not have successfully prosecuted him but for the agency's reliance on" rules that might be modified in subsequent notice-and-comment rulemaking. Id. at 23a. /1/ Because the court of appeals has reserved the possibility that its judgment will serve as a basis for future decisions invalidating penalties in proceedings conducted in part under the Rules of Practice, there remains a live controversy concerning the validity of those Rules during the period they remained in effect. See Pet. 23. 2. In an effort to sidestep the continuing consequences of the court of appeals' judgment, ATA devotes most of its brief in opposition to a red herring. The issue is not whether the FAA will repeat the action that the court of appeals' decision held unlawful -- i.e., repromulgate the Rules of Practice in effect prior to April 13, 1990, without notice-and-comment. Thus, decisions addressing the justiciability of cases in which a party has voluntarily ceased a course of conduct whose legality is in question have no relevance here. /2/ The issue, instead, is whether the future consequences of the court of appeals' judgment suffice to support a continuing controversy. On that point, ATA does not deny that some of its members may seek to invoke the court of appeals' judgment to invalidate penalties assessed in proceedings conducted in part under the Rules of Practice struck down by the court of appeals. ATA contends, however, that the potential for such claims "proves, at most, that those other proceedings are not moot." Br. in Opp. 7. The thrust of this argument is that the existence of live controversies between ATA members and the FAA in ongoing civil penalty proceedings will not sustain a justiciable case between ATA and the FAA. That is a remarkable assertion from a party whose standing to pursue this case has always been derived exclusively from the applicability of the Rules of Practice to its members. There was never any possibility that the Rules of Practice would be applied to ATA itself. Rather, under principles of associational standing, ATA was allowed to pursue this suit -- and the claim that the notice-and-comment requirement was applicable to the Rules of Practice -- as a representative of ATA members that had live controversies with the FAA concerning the validity of its rules. /3/ Indeed, when the government questioned whether the case was ripe and suggested that the validity of the Rules of Practice should be resolved in cases in which penalties had been assessed, ATA strenuously asserted that it should be allowed to challenge the rules without waiting for the results of individual cases. This case was held to be ripe for review -- and ATA was a proper party -- only because there were live controversies between the FAA and ATA members concerning the applicability of the notice-and-comment requirement to the Rules of Practice. See Pet. App. 7a-9a, 25a. The continuing existence of those controversies must be sufficient to sustain further review, since it sustained ATA's right to review in the first place. Significantly, ATA is seeking denial of the petition, not vacation of the judgment and dismissal of its petition for review. In so doing, ATA is seeking to preserve the court of appeals' decision -- thereby enabling its members to invoke it in individual penalty proceedings. ATA cannot at the same time argue that the potential effects of the judgment in individual proceedings are irrelevant to further review. Finally, the parties to this case include, in addition to ATA, two air carriers against which penalty proceedings were commenced under the invalidated Rules of Practice (America West Airlines, Inc. and American Trans Air, Inc.) and three industry associations (the National Air Carrier Association, Inc., the Air Line Pilots Association, and the Aircraft Owners and Pilot Association). /4/ While these parties have joined in the arguments presented in ATA's brief in opposition (Br. in Opp. 1 n.1), none of them has disavowed an intention to rely on the court of appeals' decision in penalty proceedings that were conducted, at least in part, under the Rules of Practice that court struck down. 3. ATA also misstates the scope of the matters in issue. The brief in opposition suggests that the dispute in this case has been limited to eight specific provisions in the FAA Rules of Practice. Br. in Opp. 7. ATA is too modest. The arguments that it presented to the court of appeals (and that prevailed in that court) extended far beyond the eight Rules referred to in the brief in opposition. In its brief in the court of appeals, ATA declared: "The Final Rule" -- i.e., all of the Rules of Practice -- "should be declared invalid because FAA failed to provide public notice and opportunity for comment before adopting the Rule." ATA C.A. Br. 44. The court of appeals accepted ATA's invitation to strike down the Rules of Practice in their entirety. The court "reject(ed) the FAA's contention * * * that (it) should identify which individual Rules fall within the scope of section 553(b)(A) and invalidate only those," ruling that "it would be inappropriate for (the court) selectively to invalidate individual Rules while leaving the FAA's adjudicatory scheme intact." Pet. App. 16a n.12. ATA asked for a determination that the Rules of Practice were invalid in their entirety and, over the government's specific objection, won that relief. ATA's assertion that its litigation objectives were limited to obtaining modifications in eight individual rules is irrelevant to the issues before this Court. 4. Of course, if ATA and the other respondents are serious in suggesting that they have no interest in preserving the court of appeals' judgment (see Br. in Opp. 6-7), there is a ready means of disposing of this case. In Frank v. Minnesota Newspaper Ass'n, Inc., 109 S. Ct. 1734 (1989), we filed a brief in this Court indicating that a statute that had been struck down as unconstitutional did not apply to a certain class of cases. Satisfied with that interpretation, the association of newspapers that had sued to invalidate the statute "state(d) its willingness to forgo any further claim to the declaratory and equitable relief sought in its complaint." Id. at 1734. This Court concluded that there was no longer any live controversy as to the constitutionality of the statute, and it vacated the court of appeals' judgment and remanded for dismissal of the pertinent portions of the complaint. If ATA and the other respondents are prepared to make the same representation in this case and to accept the same disposition, they should make that position clear to this Court. See Deakins v. Monaghan, 484 U.S. 193, 199-200 & n.3 (1988) (noting that such representations should be unequivocal and that they should result in vacation of the judgment and dismissal of the action). The government would have no interest in litigating the validity of the court of appeals' judgment if it were established that the judgment could have no future consequences. We think this erroneous judgment can. If we are wrong, however, and this case is otherwise deserving of this Court's consideration (as we have shown it is), the government is entitled to be relieved of a judgment that, by virtue of mootness, is insulated from further review. If the Court concludes on the basis of the present record that the case is moot, the proper disposition would be to vacate the judgment and to remand for dismissal of the petition for review. United States v. Munsingwear, Inc., 340 U.S. 36, 39-40 (1950). If this Court is in doubt about the existence of a continuing controversy, it may vacate the court of appeals' judgment and remand to that court for consideration of the issue of mootness. See Potomac Electric Power Co. v. Curran, 484 U.S. 1022 (1988). * * * * * The petition for a writ of certiorari should be granted. Respectfully submitted. JOHN G. ROBERTS, JR. Acting Solictor General /5/ DECEMBER 1990 /1/ We do not concede that those claims, if asserted, would have merit. However, so long as they may be asserted, the FAA and the parties in a position to raise them have a live controversy as to the validity of the judgment. /2/ In Princeton Univ. v. Schmid, 455 U.S. 100 (1982), this Court found that the University lacked standing to litigate the validity of a regulation that had been amended at a time when (with the exception of one criminal defendant whose conviction had been reversed) the regulation was not involved in any pending proceeding. Unlike this case, therefore, there was no possibility that the validity of the regulation would be material to the future disposition of any case. /3/ See Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 343 (1977) ("an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members of the lawsuit"); United Auto Workers v. Brock, 477 U.S. 274 (1986). /4/ We are advised that intervenors Southern Air Transport, Inc., and World Airways, Inc., were not parties to proceedings conducted in any part under the invalidated rules. The case is moot as to these carriers and the individual intervenors. See Pet. 23 n.20. /5/ The Solicitor General is disqualified in this case.