Petition for rehearing, motion for recall and clarification of the mandate, motion for injunctive relief pending appeal and motion for an expedited appeal.
Newman and Winter, Circuit Judges, and Maletz, Senior Judge.*fn*
Before us are: (i) a motion for recall and clarification of the mandate in the previous appeal, Global International Airways Corp. v. Port Authority, 727 F.2d 246 (2d Cir. 1984), or, alternatively, for injunctive relief pending the present appeal from the district court's denial of temporary and preliminary relief; (ii) a motion for an expedited appeal from that denial; and (iii) a petition for rehearing in the previous appeal.
Subsequent to our opinion of January 31, 1984, familiarity with which is assumed, but before issuance of the mandate, various parties took steps to preserve their respective positions. Minerve, Compagnie Francaise de Transports Aeriens, S.A. ("Minerve"), which was not a party to the original proceeding but was a beneficiary of the temporary relief granted in that proceeding by the district court, filed a complaint in the Southern District of New York challenging the Port Authority's Interim Rule. The appellees in the original appeal filed a petition for rehearing in this court, and the Port Authority moved this panel for issuance of the mandate. We granted the latter motion, and the mandate issued on March 2.
Minerve and Zantop International Airlines, Inc. ("Zantop"), an appellee in the original appeal, then sought temporary and preliminary relief in the district court enjoining the Port Authority from enforcing its Interim Rule. Their arguments were based on the commerce clause and allegedly arbitrary and discriminatory administration of the Rule. Also asserted was a claim that an evidentiary hearing would reveal that the Interim Rule was operationally in conflict with the Fleet Compliance Program.
The district judge denied the relief requested by Minerve and Zantop. He did so not on the grounds that our opinion precluded such relief or even on the grounds that he deemed the requests meritless; rather, he expressed uncertainty as to exactly what issues we had resolved, as to what issues remained open for adjudication before him and as to why we had not resolved all of the issues Minerve and Zantop were now seeking to raise. He then denied the relief requested so as to create an opportunity for the parties to appeal and to obtain clarification of our earlier ruling.
Clarification must begin with the original decision of the district judge, 564 F. Supp. 795 (S.D.N.Y. 1983) made in response to the explicit claim that the Port Authority's regulations were "invalid on their face." Transcript of June 6, 1983 hearing at 3. In delivering that decision, which was before us in the first appeal, the district judge stated inter alia :
You have not supplied anything which calls for an evidentiary hearing on any factual matter. What I am confronted with here is whether the federal scheme of regulation regarding fleet composition preempts the Port Authority's conflicting provisions.
The application for preliminary injunction against the operation of the 1983 Interim Rule complains . . . that the Port Authority's Interim Rule is invalid because it is preempted by federal legislation and regulation.
In consequence of the very clear statutory provisions and the equally clear regulation of the Port Authority, the two are in hopeless conflict, and the Port Authority's rules are preempted because they stand as an obstacle to the execution of Congressional and FAA objectives. By preventing the operation of aircraft that hold valid exemptions before the January 1, 1985 cutoff date, the Port Authority's rules interfere with the Congressional purposes underlying those exemptions.
In sum, with a conflict between the Port Authority's noise abatement restrictions and the express compliance schedule set out by federal law, and with the purposes and objectives of that law, it must be concluded that the Port ...