Air Transport Association v. FAA (ORDER) ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed: January 15, 2019
No. 18-1157
AIR TRANSPORT ASSOCIATION OF AMERICA, INC., D/B/A
AIRLINES FOR AMERICA,
PETITIONER
v.
FEDERAL AVIATION ADMINISTRATION,
RESPONDENT
PORT OF PORTLAND,
INTERVENOR
On Motion for Stay of Briefing Schedule for Final Brief
in Light of Lapse of Appropriations
Before: ROGERS and TATEL, Circuit Judges, and RANDOLPH*,
Senior Circuit Judge
ORDER
Upon consideration of the motion of respondent for stay
of the briefing schedule for final brief in light of the lapse of
appropriations, and the opposition thereto, it is
2
ORDERED that the motion be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Ken Meadows
Deputy Clerk
* A statement by Senior Circuit Judge Randolph, dissenting
from the denial of the motion for stay of the briefing schedule
for final brief, is attached.
RANDOLPH, Senior Circuit Judge, dissenting:
For the reasons stated in Kornitzky Group, LLC v. Elwell,
No. 18-1160, ___ F.3d ___, 2019 WL 138710, at *2–3 (D.C.
Cir. Jan. 9, 2019) (Randolph, J., dissenting), I dissent from the
panel’s denial of the motion for a stay. The majority’s order in
effect directs a government attorney to perform work unrelated
to any “emergencies involving the safety of human life or the
protection of property” and not otherwise “authorized by law”
in violation of the Anti-Deficiency Act. 31 U.S.C. § 1342.
After we published the opinions in Kornitzky, it came to my
attention that several days earlier a different panel, in response
to the government’s § 1342 motion, granted an extension of the
briefing schedule in a case in which the government is a party.
See United States v. Vasquez-Benitez, No. 18-3076 (D.C. Cir.
Jan. 3, 2018) (per curiam order). We now have another panel’s
grant of a similar extension, albeit in a case that will be
submitted without oral argument. See Franklin-Mason v.
Spencer, No. 17-5135 (D.C. Cir. Jan. 10, 2018) (per curiam
order).
It is obvious that our circuit has not settled upon any
principled way of deciding these stay motions. There is no
analytical difference between a motion to stay a briefing
schedule (as in this case) and a motion to postpone oral
argument (as in Kornitzky).