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06/30/83 Action On Smoking and v. Civil Aeronautics Board

June 30, 1983





August 5, 1983. 1983.CDC.166


Wright and Mikva, Circuit Judges and Bazelon, Senior Circuit Judge.


For the reasons set forth in the attached memorandum, petitioner's motion for emergency relief is granted. That portion of ER-1245A that revokes the "unreasonably burdened" language is vacated.

We further order the CAB to republish the " unreasonably burdened" provision of ER-1091 until such time as those provisions may be amended or revoked by proper rulemaking made after new notice and comment proceedings in compliance with the requirements of section 4(b), (c) of the Administrative Procedure Act, 5 U.S.C. § 553(b), (c) (1976).


[August 5, 1983]

On January 28, 1983, this court entered its opinion in Action on Smoking and Health v. Civil Aeronautics Board, 226 U.S. App. D.C. 57, 699 F.2d 1209 (D.C. Cir. 1983). *fn1 In that case, this court examined, among other issues, a certain portion of ER-1245 that purported to rescind three CAB rules provided in ER-1091 for the protection of non-smokers. The court determined that, because of CAB's failure to provide an adequate "basis and purpose statement" to justify these rescissions, that portion of ER-1245 had been promulgated in violation of section 4(c) of the Administrative Procedure Act.

As a result, the opinion clearly and unequivocally vacated the offending portion of ER-1245. To "vacate," as the parties should well know, means "to annul; to cancel or rescind; to declare, to make, or to render, void; to defeat; to deprive of force; to make of no authority or validity; to set aside." 91 C.J.S. Vacate (1955); see Stewart v. Oneal, 237 F. 897, 906 (6th Cir. 1916). Thus, by vacating or rescinding the recissions proposed by ER-1245, the judgment of this court had the effect of reinstating the rules previously in force, i.e., ER-1091, a fact which the CAB appears to concede, see CAB Case Mem. No. 069-L (May 13, 1983) ("the three regulations that the Court of Appeals had reinstated") ("the third reinstated regulation would still be revoked").

Because the effect of this court's judgment in ASH v. CAB was to reinstate the protections of ER-1091, they cannot again be revoked without new rulemaking in accordance with the provisions of section 4 of the Administrative Procedure Act. See 5 U.S.C. § 553 (1976). The APA requires agencies engaging in rulemaking to publish notice of the proposed rule and rulemaking proceedings in the Federal Register and to afford all interested persons an opportunity to participate in the rulemaking process. See id. at § 553(b), (c). Despite this requirement, CAB, without providing new opportunities for notice and comment, has elected to publish a "new" rule, again revoking one of the protections accorded by ER-1091. See Smoking Aboard Aircraft, 48 Fed. Reg. 24,866 (1983) (to be codified at 14 C.F.R. pt. 252) (adopted May 19, 1983; effective July 3, 1983). This "new" rule purports to provide, in response to this court's decision in ASH, "further explanation for its earlier decision . . . not to include vague language in its smoking rule prohibiting unreasonable burdens on nonsmokers from breathing tobacco smoke." Id. at 24,866.

CAB attempts to justify its refusal to engage in renewed notice and comment procedures by arguing that, because the court invalidated ER-1245 due to its inadequate explanation of basis and purpose, further explanation, as provided in the "new" rule, should be all that is necessary to remedy the earlier deficiency. See CAB Order No. 83-5-101 (May 19, 1983). In support of this argument, CAB relies heavily upon the language of Williams v. Washington Metropolitan Area Transit Comm'n, 134 U.S. App. D.C. 342, 415 F.2d 922, 939-40 (D.C. Cir. 1968) (en banc), cert. denied, 393 U.S. 1081, 21 L. Ed. 2d 773, 89 S. Ct. 860 (1969):

Where an agency action must be set aside as invalid, but the agency is still legally free to pursue a valid course of action, a reviewing court will ordinarily remand to enable the agency to enter a new order after remedying the defects that vitiated the original action.

However, Williams does not address the steps an agency must take to enter a valid new order to remedy defects in an earlier vacated action. *fn2 An agency cannot remedy a deficiency in one regulation by promulgating a new ...

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