                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-17-2001

Khodara Env Inc v. Beckman
Precedential or Non-Precedential:

Docket 99-3458, 99-3465 & 99-3475




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Recommended Citation
"Khodara Env Inc v. Beckman" (2001). 2001 Decisions. Paper 7.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/7


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Filed January 17, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 99-3458, 99-3465, 99-3475

KHODARA ENVIRONMENTAL, INC.,
GENERAL PARTNER, ON BEHALF OF EAGLE
ENVIRONMENTAL, L.P.

v.

STEVEN BECKMAN;
FEDERAL AVIATION ADMINISTRATION;
CLEARFIELD-JEFFERSON COUNTIES REGIONAL
AIRPORT AUTHORITY; DONALD R. JOHNSON; P AUL
SEKULA; WILLIAM MIKSICH; FREDERICK G. MURRAY;
TIM MORGAN; ROBERT E. REITZ; HENRY DEIBLE; PAUL
MCMILLEN; MARK MCKINLEY; JANE F. GARVEY

JEFFERSON COUNTY; PINE CREEK TOWNSHIP
(Intervenor-defendants in D.C.)

Federal Aviation Administration,
       Appellant in No. 99-3458

Khodara Environmental, Inc., general partner
acting on behalf of Eagle Environmental, L.P .,
(collectively "Eagle"),
       Appellant in No. 99-3465

Steven Beckman,
       Appellant in No. 99-3475

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF PENNSYLVANIA

(Dist. Court No. 97-cv-00093E)
District Court Judge: Sean J. McLaughlin
Argued: February 28, 2000

Before: ALITO and STAPLETON, Cir cuit Judges, and
POLLAK, District Judge.*

(Opinion Filed: January 17, 2001)

       DAVID W. OGDEN
       Acting Assistant Attorney General
       HARRY LITMAN
       United States Attorney
       MARK B. STERN
       SCOTT R. McINTOSH (Argued)
0      Attorneys, Appellate Staff
       Civil Division, Department of Justice
       601 D Street N.W., Room 9550
       Washington, DC 20530-0001

       Counsel for Appellant Federal
       Aviation Administration

       JOHN P. KRILL, JR. (Argued)
       CARLETON O. STROUSS
       JACQUELINE JACKSON-DeGARCIA
       JULIA M. GLENCER
       Kirkpatrick & Lockhart LLP
       240 North Third Street
       Harrisburg, PA 17101

       Counsel for Appellee/Cross-Appellant
       Khodara Environmental, Inc.

_________________________________________________________________

* The Honorable Louis H. Pollak, Senior Judge of the United States
District Court for the Eastern District of Pennsylvania, sitting by
designation.

                               2
       PAUL A. TUFANO
       General Counsel
       THADDEUS A. WEBER (Argued)
       Assistant Counsel
       Commonwealth of Pennsylvania
       Department of Environmental
        Protection
       Northwest Regional Counsel
       Meadville, PA 16335

       Counsel for Appellant/Cross-Appellee
       Steven Beckman

       THOMAS L. WENGER (Argued)
       STEVEN R. WILLIAMS
       Wix, Wenger & Williams
       508 North Second Street
       Harrisburg, PA 17101

       Counsel for Appellees Clearfield-
       Jefferson Counties Regional Airport
       Authority, Donald R. Johnson, Paul
       Sekula, William Miksich, Frederick
       G. Murray, Tim Morgan, Robert E.
       Reitz, Henry Deible, Paul McMillen
       and Mark McKinley

OPINION OF THE COURT

ALITO, Circuit Judge:

Eagle Environmental, L.P. ("Eagle"), a landfill developer,
brought both facial and as-applied challenges against a
federal statute regulating the placement of waste disposal
facilities near airports. The District Court struck down the
law as facially unconstitutional, holding that it was so
irrationally underinclusive as to violate equal pr otection.

While this appeal was pending, Congress r epealed the
challenged statute and replaced it with a substantially
broader regulatory scheme. We believe that this action has
mooted Eagle's claims regarding the old statute's facial
constitutionality, and accordingly vacate that portion of the

                               3
District Court's judgment. As to Eagle's as-applied
challenges, we affirm the District Court's grant of summary
judgment in favor of the defendants.

I.

A. The Happy Landing Landfill

The pertinent facts of this case are not in dispute.
Khodara Environmental, Inc., is the general partner of
Eagle, a limited partnership based in Englewood Clif fs, New
Jersey. Eagle owns approximately 680 acr es in Jefferson
County, Pennsylvania, on which it planned to develop a
solid waste disposal facility to be called the Happy Landing
Landfill. Happy Landing was intended to accept municipal
waste from primarily out-of-state producers. The Happy
Landing site is located approximately 5.25 miles from the
Dubois-Jefferson County Airport.

In 1990, Eagle began applying for the necessary landfill
permits from the Pennsylvania Department of
Environmental Protection ("PDEP"). 1 The PDEP initially
issued all four of the permits necessary for the construction
and operation of Happy Landing. After obtaining these
permits, Eagle began pre-construction by conducting
engineering surveys and installing monitoring wells.

In September 1996, however, the Pennsylvania Fish and
Boat Commission designated three streams near the Happy
Landing site as wild trout streams. Based on this
designation, the PDEP determined that the landfill site
contained wetlands of "exceptional value" and that it
consequently should not have issued to Eagle the W ater
Obstruction and Encroachment Permit tofill these wetland
_________________________________________________________________

1. Under Pennsylvania law, before construction and operation of a
landfill may commence, the prospective operator must obtain the
necessary permits from the PDEP, including: a permit to authorize the
construction and operation of the landfill; a per mit to authorize the
discharge of treated industrial waste; a permit to authorize certain air
emissions related to the landfill's operation; and, if the proposed
construction adversely affects wetlands, a W ater Obstruction and
Encroachment Permit.

                                4
areas. Accordingly, on September 25, 1996, Steven
Beckman, the Regional Director of the Northwest Regional
Office of the PDEP, entered an administrative order
modifying Eagle's Water Obstruction and Encr oachment
Permit by revoking its authorization tofill certain wetland
areas. The order also suspended the r emainder of that
permit, as well as all of Eagle's other per mits. Eagle
appealed the revocation and suspension or der to the
Pennsylvania Environmental Hearing Boar d. The Board
denied Eagle's appeal, and the Pennsylvania
Commonwealth Court, in an Order filed on February 19,
2000, affirmed. See Khodara Envir onmental, L.P. v.
Department of Environmental Protection , No. 2704 C.D. 1998
(Pa. Commw. Ct. Feb. 19, 2000). Eagle's appeal of the
Commonwealth Court's order is currently pending, and
construction of Happy Landing has been suspended until
this controversy is resolved.

B. The 1996 Amendment

On October 9, 1996, Congress enacted the Federal
Aviation Reauthorization Act of 1996, Pub. L. No. 104-264,
110 Stat. 3213. Section 1220 of the Act (the "1996
Amendment") was drafted by Representatives Bud Schuster
and William Clinger--whose Pennsylvania districts
encompass Jefferson County and neighboring ar eas--and
was inserted into the Act during a conference committee
convened to debate an unrelated amendment. The 1996
Amendment provided:

       (a) Landfills: [49 U.S.C.] Section 44718 is amended by
       adding at the end the following:

       (d) Landfills: For the purpose of enhancing aviation
       safety, in a case in which 2 landfills have been
       proposed to be constructed or established within
       6 miles of a commercial service airport with
       fewer than 50,000 enplanements per year, no
       person shall construct or establish either landfill
       if an official of the Federal Aviation
       Administration has stated in writing within the
       3-year period ending on the date of the
       enactment that 1 of the landfills would be

                                5
       incompatible with aircraft operations at the
       airport, unless the landfill is already active on
       the such date of enactment or the airport
       operator agrees to the construction or
       establishment of the landfill.

       (b) Civil Penalties: [49 U.S.C.] Section 46301 is
       amended by inserting 44718(d) after 44716, in
       each of subsections (a)(1)(A), (d)(2), and (f)(1)(A)(i).

Pub. L. No. 104-264, S 1220(a), 110 Stat. 3213, 3286.
Eagle's proposed landfill fell within the statutory criteria.
Both Happy Landing and a second proposed waste disposal
facility, the Leatherwood Landfill,2 were located within six
miles of the DuBois-Jefferson County Airport, a commercial
airport with fewer than 50,000 enplanements per year .
Moreover, the FAA had issued a written determination
within the preceding three years that the Leatherwood
facility would be incompatible with aircraft operations at
the Airport.3 In fact, as the F AA has admitted on appeal,
_________________________________________________________________

2. In January 1991, Leatherwood, Inc., submitted a request to the PDEP
for permission to operate the Leatherwood Landfill near the Dubois-
Jefferson County Airport.

3. Leatherwood's proposed site was located within five miles of the
Airport and beneath the approach course of a runway. The FAA
concluded that this configuration would significantly increase the risk of
an aircraft bird strike and accordingly recommended that the PDEP deny
Leatherwood's permit application under a 1990 FAA regulation, which
classified the following landfill placements as incompatible with air
safety:

       a. Waste disposal sites located within 10,000 feet of any runway
       end used or planned to be used by turbine power ed aircraft.

       b. Waste disposal sites located within 5,000 feet of any runway end
       used only by piston powered aircraft.

       c. Any waste disposal site located within a 5 mile radius of a
       runway end that attracts or sustains hazardous bird movements
       from feeding, water or roosting ar eas into, or across the runways
       and/or approach and departure patter ns of aircraft.

(App. 2:196.) Because Happy Landing was located 5.25 miles away from
the Airport, however, it was not subject to F AA regulation prior to the
passage of the 1996 Amendment.

                               6
the 1996 Amendment's extremely narrow criteria affected
only Happy Landing, out of all the landfills in the country.4

On October 21, 1996, PDEP Regional Director Beckman
sent a letter to Eagle informing it that the 1996
Amendment "impacts the two proposed landfills in
Jefferson County, Eagle Environmental's Happy Landing
Landfill and Leatherwood, Inc.'s Jefferson Landfill." (App.
1:51.) The letter went on to explain that all of the permits
previously issued for the Leatherwood landfill had been
suspended in light of the new law. The letter further
advised that

       [t]he Department's further action regar ding
       reinstatement and/or modification of Eagle
       Environmental's currently suspended per mits will be
       governed by the same criteria applicable to
       Leatherwood, Inc. Thus, if Eagle seeks reinstatement or
       modification pursuant to the Department's September
       25th Order, Eagle Environmental should also indicate
       to the Department how it intends to comply with
       Section 1220(a) of the Federal Aviation Reauthorization
       Act of 1996.

(App. 1:51.)

On November 20, 1996, Eagle, acting pursuant to the
new statutory scheme, formally sought per mission from the
Clearfield-Jefferson Counties Regional Airport Authority
(the "Airport Authority")5 to construct and operate the
_________________________________________________________________

4. The 1996 Amendment's legislative history suggests that it was
intended to single out Happy Landing for regulation. After the Act was
signed into law, Rep. Shuster, the pr ovision's drafter, issued a press
release titled "SHUSTER AUTHORS PROVISION TO PROTECT DUBOIS
JEFFERSON COUNTY AIRPORT FROM LANDFILL," in which he stated
that "[m]y provision allows the local airport authority to stop these
landfills." (App. 3:497-98.) Another newspaper article quoted Rep.
Shuster as stating that the Amendment was enacted to enable the local
Airport Authority to block the landfill and that"[t]here's only one
airport
in the United States that fits [the Amendment's] definition." (App.
3:500.)
Commenting on the possibility of a legal challenge by Eagle, Rep.
Shuster stated that "if they go into court, you could tie them up for
years
and years and years." (App. 3:500.)

5. The Authority is a municipal authority for med under the laws of
Pennsylvania, and is entirely responsible for the operation of the Dubois-
7
landfill. On November 22, the Authority responded with a
letter notifying Eagle that it would accept written
documentation supporting Eagle's request for a period of 30
days. The Authority also informed Eagle that it would
accept documentation from other interested parties over the
same period and that all the submissions it r eceived would
be made public. On December 23, 1996, Eagle pr ovided the
Authority with 14 exhibits in support of its r equest. At a
public meeting held on January 24, 1997, the Authority's
Board of Directors unanimously denied Eagle's request.

C. The District Court Litigation

On April 25, 1997, Eagle filed the present action in the
United States District Court for the Wester n District of
Pennsylvania. Eagle's first three claims, which involved
facial constitutional challenges to the 1996 Amendment,
were asserted against the FAA, as well as against Barry
Valentine (the Acting Administrator of the F AA)6 and Steven
Beckman (the Regional Director of the PDEP) in their
official capacities.7 Count I of the Complaint alleged that
the 1996 Amendment worked an unconstitutional
delegation of federal authority to the local airport authority;
Count II attacked the Amendment as an unconstitutional
bill of attainder; and Count III challenged the law on the
ground that it violated Eagle's rights to equal protection
and due process under the Fifth and Fourteenth
Amendments. Count IV of the Complaint was dir ected
_________________________________________________________________

Jefferson County Airport. The Authority, acting through its Board of
Directors, is generally responsible for making decisions concerning the
administration of the Airport, including operations, airport safety, and
capital improvements.

6. On August 4, 1997, Jane F. Garvey was appointed FAA Administrator.
Garvey was substituted as a defendant pursuant to Federal Rule of Civil
Procedure 25(d)(1).

7. In its Complaint, Eagle originally asserted these claims against the
Airport Authority and its directors as well. The District Court, however,
held that the Airport Authority defendants wer e not proper parties to
Eagle's facial challenges to the 1996 Amendment, and Eagle has not
appealed this ruling.

                               8
against the Airport Authority and its directors 8 in their
individual and official capacities. This count asserted that
defendants' application of the 1996 Amendment violated
Eagle's constitutional rights to equal protection, procedural
and substantive due process, and freedom from the taking
of property without just compensation. Finally, Count V,
which Eagle asserted against all defendants, claimed that
the 1996 Amendment did not apply to Happy Landing as a
matter of statutory construction. Eagle sought declaratory
judgment on all counts, as well as prospective injunctive
relief and compensatory and punitive damages. In addition
to the previously mentioned parties, the District Court
granted Jefferson County and Pine Creek T ownship
permission to participate as intervenors in the case.

On May 16, 1997, defendant Beckman filed a motion to
dismiss the case, arguing that Eagle lacked standing and
that the case was not ripe. Specifically, Beckman argued
that Eagle could not demonstrate any injury arising from
the PDEP's letter of October 21, 1996, because, when the
letter was issued, Happy Landing's construction had
already been forestalled by the suspension of Eagle's state
permits. On September 23, 1997, the District Court denied
Beckman's motion, holding that a ruling on the
constitutionality of the 1996 Amendment would per mit
Eagle to make an informed decision on whether to expend
additional effort to pursue its appeal on the state permits.
Moreover, the court held that the PDEP had not foresworn
its intention to enforce the 1996 Amendment should Eagle's
permits be restored in its state court litigation.

Eagle subsequently filed a motion for partial summary
judgment as to Counts I, II, and III of its Complaint--the
facial constitutional challenges. The FAA and the
intervenors cross-moved for summary judgment on the
same counts. The Airport Authority and its Boar d members
moved for summary judgment as to Counts IV and V .
Beckman filed a motion in which he renewed his previous
arguments concerning standing and ripeness, and further
_________________________________________________________________

8. The Airport Authority's directors during the relevant period were Don
Johnson, Paul Sekula, William Miksich, Mark McKinley, Frederick
Murray, Tim Morgan, Robert Reitz, Henry Deible and Paul McMillen.

                               9
argued that he was entitled to summary judgment on the
basis of Eleventh Amendment immunity. The intervenors
also moved to dismiss on the grounds of mootness and lack
of ripeness.

On April 1, 1999, the District Court entered its final
judgment and order. See Khodara Environmental, Inc. v.
Beckman, 91 F. Supp. 2d 827 (W.D. Pa. 1999). At the
outset, the Court rejected the jurisdictional defenses raised
by Beckman and the intervenors and held that the 1996
Amendment, as a matter of statutory construction, applied
to Happy Landing. Turning to Eagle's constitutional
challenges, the Court held that the 1996 Amendment was
facially unconstitutional because it violated Eagle's right to
equal protection. Although the Court found that the
government had a legitimate interest in preventing aircraft
bird strikes, it found several aspects of the statute so
grossly under- and over-inclusive as to render the statutory
classification irrational. In particular, the Court saw no
rational justification for the provisions that: (1) limited the
ban to cases where exactly two landfills had been proposed;
(2) restricted the provision to airports with less than 50,000
annual emplanements; (3) covered only commer cial, and
not commuter, airports; and (4) limited the statute to purely
retrospective effect. In short, the Court found it irrational to
single out the Leatherwood and Happy Landing Landfills for
regulation, while permitting the operation of other similarly
situated landfills across the country. Because it held the
Amendment unconstitutional on equal protection grounds,
the Court did not find it necessary to addr ess Eagle's bill of
attainder or non-delegation challenges. Finally, the Court
granted summary judgment in favor of the Airport
Authority and its directors with respect to Eagle's "as
applied" constitutional claims (Count IV).

The FAA and Beckman appealed the Court's
determination that the 1996 Amendment was facially
unconstitutional. Eagle cross-appealed the grant of
summary judgment in favor of the Airport Authority
defendants on Count IV.

D. The 2000 Amendment

This Court took up the appeals and heard oral argument.
After oral argument, but before we had issued a judgment,

                               10
Congress enacted legislation substantially modifying the
1996 Amendment. On April 5, 2000, the President signed
into law the Wendell H. Ford Aviation Investment and
Reform Act for the 21st Century, Pub. L. No. 106-181, 114
Stat. 61 (2000). Section 503 of the Act (the "2000
Amendment") amended 49 U.S.C. S 44718(d) to read as
follows:

       (d) LIMITATION ON CONSTRUCTION OF LANDFILLS.
       --

       (1) IN GENERAL.--No person shall construct or
       establish a municipal solid waste landfill (as defined
       in section 258.2 of title 40, Code of Federal
       Regulations, as in effect on the date of the enactment
       of this subsection) that receives putrescible waste (as
       defined in section 257.3-8 of such title) within 6
       miles of a public airport that has received grants
       under chapter 471 and is primarily served by general
       aviation aircraft and regularly scheduledflights of
       aircraft designed for 60 passengers or less unless the
       State aviation agency of the State in which the
       airport is located requests that the Administrator of
       the Federal Aviation Administration exempt the
       landfill from the application of this subsection and
       the Administrator determines that such exemption
       would have no adverse impact on aviation safety.

       (2) LIMITATION ON APPLICABILITY .--Paragraph (1)
       shall not apply in the State of Alaska and shall not
       apply to the construction, establishment, expansion,
       or modification of, or to any other activity
       undertaken with respect to, a municipal solid waste
       landfill if the construction or establishment of the
       landfill was commenced on or before the date of the
       enactment of this subsection.

Pub. L. No. 106-181, S 503, 114 Stat. 61, 133.

The 2000 Amendment significantly broadened the scope
of the statute, thus resolving many of the District Court's
equal protection concerns. Unlike the challenged law, the
new statutory scheme does not work to single out the
Happy Landing site for exceptional treatment. In essence,
the amended statute creates a purely pr ospective six-mile

                               11
"safety zone" around all federally-funded (non-Alaskan)
airports with regularly scheduled flights of 60 passengers or
less. The amended statute also alleviates the non-delegation
and separation-of-powers concerns raised by the old law.
Before the District Court, Eagle argued that the 1996
Amendment's grant of exemption power to local airport
authorities violated Article I's requir ement of unitary
executive power. The amended statute, in contrast, grants
no statutory power to local authorities. Rather , the final
power to make exceptions is granted to the Administrator of
the FAA, who is an agent of the federal executive.

In light of the 2000 Amendment, the FAA hasfiled a
motion pursuant to Local Appellate Rule 27.4 to vacate the
District Court's judgment as moot and remand.

II.

A.

We turn first to the FAA's claim of mootness. Article III of
the Constitution grants the federal courts the power to
adjudicate only actual, ongoing cases or contr oversies.
"This case-or-controversy requir ement subsists through all
stages of federal judicial proceedings, trial and appellate."
Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990);
see also U.S. Bancorp Mortgage Co. v. Bonner Mall
Partnership, 513 U.S. 18, 21 (1994); Ivy Club v. Edwards,
943 F.2d 270, 275 (3d Cir. 1991). Our mootness
determination therefore turns on whether there remains, in
light of Congress's action, "a real and substantial
controversy admitting of specific relief through a decree of
conclusive character." New Rock Asset Partners, L.P. v.
Preferred Entity Advancements, Inc. , 101 F.3d 1492, 1496
(3d Cir. 1996) (quoting National Iranian Oil Co. v. Mapco
Int'l, Inc., 983 F.2d 485, 489 (3d Cir . 1992)).

We agree that the passage of the 2000 Amendment has
mooted Eagle's facial constitutional challenges to the 1996
Amendment. Under the circumstances present here, we
must "review the judgment of the district court in light of
the [the] law as it now stands, not as it stood when the
judgment below was entered." Dif fenderfer v. Central Baptist

                                12
Church, 404 U.S. 412, 414 (1972); see also Princeton Univ.
v. Schmid, 455 U.S. 100, 103 (1982) (per curiam); Naturist
Soc'y, Inc. v. Fillyaw, 958 F.2d 1515, 1520 (11th Cir. 1992);
Black United Fund of New Jersey, Inc. v. Kean, 763 F.2d
156, 160 (3d Cir. 1985). Black United Fund is instructive. In
that case, the plaintiff charity challenged a New Jersey
statute permitting the United Way--but not other charitable
organizations--to deduct voluntary contributions from the
salaries of government workers. The District Court found
the statute unconstitutionally discriminatory and enjoined
its operation. Pending appeal, the state repealed the
challenged law and replaced it with a new statute that
permitted voluntary payroll deductions for other charities
that met specified criteria. We held that the statutory
amendment mooted plaintiff 's claims:

       We conclude, therefore, that the r epeal of the 1955
       statute and the enactment of new legislation make it
       inappropriate for us to affirm the district court's order
       based on alleged deficiencies in the old Act. The raison
       d'etre for the injunction no longer exists.

Black United Fund, 763 F.2d at 160. Moreover, we found
that the new legislation had substantially r esolved the
constitutional questions raised by the predecessor law:

       [W]e note that the new Act has enlarged the group of
       charitable organizations which may have access to
       state facilities and establishes criteria which govern
       eligibility. The legislation thus meets at least two of the
       objections cited by the district court--the exclusivity
       granted the United Way and the lack of standards for
       determining which other groups may participate. . . .
       To that extent, the new Act will give plaintif f
       substantially the relief it sought in the district court.

Id. at 160-61.

Similar concerns inform our mootness decision here. The
scope of the 2000 Amendment is substantially br oader than
that of the challenged law. The restrictive criteria and
purely retrospective nature of the old statute--which the
District Court found irrationally underinclusive--effectively
limited its application only to the Happy Landing and
Leatherwood landfills. The new provision, however, applies

                               13
prospectively to a wide variety of landfills. Accordingly, we
believe that the 2000 Amendment is far less susceptible to
attack on equal protection or bill-of-attainder grounds.
Moreover, the new law places the power to make
exemptions in the hands of the FAA rather than the local
airport authority, thereby assuaging Eagle's unitary
executive concerns.

Simply put, a declaration of unconstitutionality or
injunction directed against the objectionable features of the
1996 Amendment would serve no purpose today. "Where a
law is amended so as to remove its challenged features, the
claim . . . becomes moot as to those features." Naturist
Soc'y, 958 F.2d at 1520; see also FW/PBS, Inc. v. City of
Dallas, 493 U.S. 215, 234 (1990).

Nor do Eagle's facial challenges fall within any r ecognized
exception to the mootness doctrine. In City of Mesquite v.
Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982), the
Supreme Court held that "a defendant's voluntary cessation
of a challenged practice does not deprive a federal court of
its power to determine the legality of the practice." Such
cases may fall within the mootness exception of injuries
that are "capable of repetition, yet evading review."
Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 514
(1911). We do not believe that this cir cumstance is present
here, however. As the Fourth Cir cuit has recently noted,
"statutory changes that discontinue a challenged practice
are `usually enough to render a case moot, even if the
legislature possesses the power to reenact the statute after
the lawsuit is dismissed.' " Valer o Terrestrial Corp. v. Paige,
211 F.3d 112, 116 (4th Cir. 2000) (quoting Native Village of
Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th Cir. 1994));
see also National Black Police Ass'n v. District of Columbia,
108 F.3d 346, 349 (D.C. Cir. 1997) ("the mere power to
reenact a challenged law is not a sufficient basis on which
a court can conclude that a reasonable expectation of
recurrence exists"). In this case,"[w]e have no grounds for
suspecting that [Congress] would attempt to reenact the
prior law." Thomas v. Fielder, 884 F .2d 990, 995-96 (7th
Cir. 1989). Accordingly, we hold that Counts I, II and III of
Eagle's Complaint--its facial attacks on the
constitutionality of the 1996 Amendment--ar e moot in light

                               14
of that law's repeal and replacement by the 2000
Amendment.

B.

We next address whether the District Court's holding that
the 1996 Amendment was facially unconstitutional is
subject to vacatur. Pursuant to 28 U.S.C.S 2106, we have
the power to vacate the judgment of a district court on
appeal. In arguing for vacatur, the F AA cites cases following
United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950),
which held that "[t]he established practice .. . in dealing
with a civil case from a court in the federal system which
has become moot while on its way here or pending our
decision on the merits is to reverse or vacate the judgment
below and remand with a direction to dismiss."

The Supreme Court, however, has explained that
Munsingwear does not set forth a categorical rule. In U.S.
Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S.
18, 23-25 (1994), the Court clarified that vacatur is an
equitable remedy rather than an automatic right. See, e.g.,
National Black Police, 108 F.3d at 346; Humphreys v. Drug
Enforcement Administration, 105 F.3d 112, 113-14 (3d Cir.
1996) ("Munsingwear should not be applied blindly, but
only after a consideration of the equities and the underlying
reasons for mootness."). In particular , U.S. Bancorp
emphasized that when mootness results fr om the voluntary
action of the party seeking relief from the judgment below,
vacatur should not be granted unless doing so would serve
the public interest. See U.S. Bancorp, 513 U.S. at 25-29. In
such cases, the Court explained, the public inter est in a
robust corpus of judicial precedent nor mally outweighs the
party's interest in relief from the judgment, "the losing
party having voluntarily forfeited his legal r emedy by the
ordinary processes of appeal or certiorari, thereby
surrendering his claim to the equitable r emedy of vacatur."
Id. at 29. "Thus, absent unusual circumstances, the
appellate vacatur decision under Bancorp is informed
almost entirely, if not entirely, by the twin considerations of
fault and public interest." Valero Terrestrial, 211 F.3d at
118.

                               15
U.S. Bancorp refused vacatur in a case in which the
losing party below mooted the action by settling pending
appeal. Today, we must decide whether this same
presumption against vacatur is appropriate when a
governmental appeal is mooted by legislative amendment.
The Court of Appeals for the District of Columbia Circuit
recently addressed this same question, and we find its
reasoning persuasive:

       Clearly, the passage of new legislation repr esents
       voluntary action, and thus on its face the Bancorp
       presumption might seem to govern. W e believe,
       however, that application of the Bancorp presumption
       in this context is not required by the Bancorp opinion's
       rationale and would be inappropriate, at least if there
       is no evidence indicating that the legislation was
       enacted in order to overturn an unfavorable precedent.
       The rationale underlying the Bancorp pr esumption is
       that litigants should not be able to manipulate the
       judicial system by "roll[ing] the dice. . . in the district
       court" and then "wash[ing] away" any"unfavorable
       outcome" through use of settlement and vacatur. The
       mere fact that a legislature has enacted legislation that
       moots an appeal, without more, provides no grounds
       for assuming that the legislature was motivated by
       such a manipulative purpose. The legislature may act
       out of reasons totally independent of the pending
       lawsuit, or because the lawsuit has convinced it that
       the existing law is flawed.

National Black Police, 108 F.3d at 351-52; see also Valero
Terrestrial, 211 F.3d at 120 (U.S. Bancorp counsels vacatur
where challenge is rendered moot by state's amendment of
challenged statute).

Eagle nevertheless argues that the recor d in this case
militates against vacatur, because the F AA "is a knowing
beneficiary of a legislative change backed by an illegitimate
motive--i.e., to frustrate an unfavorable judgment." We
cannot agree. Mindful of the fact that "legislative actions
are presumptively legitimate," we ar e "wary of impugning
the motivations that underlie a legislature's actions."
National Black Police, 108 F.3d at 352. Eagle's claim of
"persistent misuse of the legislative process" rings hollow.

                               16
There is no suggestion that Congress failed to follow
constitutionally prescribed procedur es in passing the 2000
Amendment. And, although Eagle argues that Congress's
actions represent an attempt to frustrate an adverse
judgment, the new legislation could just as cr edibly be
viewed as a commendable effort "to r epair what may have
been a constitutionally defective statute." American Library
Ass'n v. Bar, 956 F.2d 1178, 1185 (D.C. Cir. 1992). In
short, Eagle has presented no evidence to indicate that the
2000 Amendment represents "manipulation of the
legislative process" rather than "r esponsible lawmaking." Id.

Accordingly, we believe that equity would best be served
by vacating the District Court's judgment as to the facial
unconstitutionality of the 1996 Amendment.9

C.

Eagle's as-applied constitutional claims against the
Airport Authority and its directors, however , require a
different analysis. Pursuant to the 1996 Amendment, Eagle
requested that the Authority approve construction and
operation of Happy Landing. Count IV of Eagle's Complaint
alleged that the Authority and its directors, in denying that
request, violated Eagle's rights to procedural and
substantive due process, equal protection, and freedom
from taking without just compensation. The District Court
granted summary judgment in favor of the defendants on
these claims, and on appeal, Eagle contests that District
Court's decision with respect to the pr ocedural and
substantive due process claims.

We do not believe that the passage of the 2000
Amendment has mooted these claims. Unlike Eagle's facial
constitutional challenges, which sought only pr ospective
declaratory and injunctive relief,10 the due process claims
_________________________________________________________________

9. In so doing, we do not express any view as to the correctness of the
District Court's ruling on Eagle's equal protection claim regarding the
1996 Amendment or as to the validity of any of Eagle's other facial
challenges.

10. We recognize that Eagle's Complaint, on its face, includes a prayer
for compensatory and punitive damages as to each of its facial

                                17
set out in Count IV sought damages against the Authority
and its members. "A case is saved from mootness if a viable
claim for damages exists." National Iranian , 983 F.2d at
489. In Phillips v. Borough of Caper ed, 107 F.3d 164, 177
(3d Cir. 1997) (en banc), we held that the substitution of a
new, less restrictive adult bookstore or dinance for the
previous, more restrictive one did not moot plaintiffs'
S 1983 damages claim arising out of the application of the
prior ordinance. Similarly, in Ransom v. Maoris, 848 F.2d
398 (3d Cir. 1988), where plaintif fs challenged municipal
sewer and water service regulations, we held:

       The plaintiffs further attempt to avoid the mooting of
       their procedural due process claims by asserting that
       the publication of new regulations, even if they now
       satisfy the due process notice requir ements, does not
       answer their claim of damages due to a deprivation of
       notice prior to their publication and resulting from the
       imperfection of liens. The plaintiffs ar e correct in their
       contention that the issuance of the new regulations
       does not moot this damage claim based on the alleged
       constitutional notice defect prior to their publication.

Id. at 410; see also Naturist Soc'y, 958 F.2d at 1519 ("the
claim for damages saves from mootness the Society's
contention that the `old' park regulations were
unconstitutional as applied to it"). Eagle's claim for
damages for the past application of the 1996 Amendment
_________________________________________________________________

challenges. (App. 31, 33, 34.) In its supplemental briefing on the
mootness issue, however, Eagle admits that it has abandoned its
damages claims on these counts and at summary judgment only sought
declaratory and injunctive relief against the F AA and Beckman:

       Eagle sued the FAA, in the person of Jane Harvey, and Steven
       Beckman in their official capacities only, and did not seek damages
       in conjunction with their actions. In Counts I, II and III, Eagle
       sought to have the [1996 Amendment] declar ed unconstitutional (on
       equal protection, bill of attainder or non-delegation grounds) and
the
       FAA and Beckman enjoined from applying or enforcing it against
       Eagle.

Eagle Letter Brief, May 24, 2000, at 2-3 (emphasis in original; citations
omitted).

                               18
invests it with a continuing, concrete stake in the outcome
of this litigation that has not been redr essed by the passage
of the 2000 Amendment. Therefore, we will address these
claims on the merits.

III.

We first consider Eagle's procedural due process claim.
Eagle complains that, although it was given the opportunity
to submit documentation in support of its application, it
was not given a chance "to review all infor mation received
by the Airport Authority and to submit responsive
comments." Khodara Reply Br. at 12. Eagle also complains
that it received no hearing before its application was
denied. Id. at 11.

The procedures followed by the Airport Authority were
not exemplary, but Pennsylvania law provided an avenue
for Eagle to contest the Authority's action. Under 2 Pa.
Cons. Stat. Ann. S 752, "[a]ny person aggrieved by an
adjudication of a local agency who has a dir ect interest in
such adjudication shall have the right to appeal therefrom
to the court vested with jurisdiction of such appeals by or
pursuant to Title 42 . . . ." The Airport Authority falls
within the definition of a "local agency,"11 and therefore
Eagle could have challenged the Authority's decision in the
state court system.

We need not decide here whether these pr ocedures would
be constitutionally sufficient if a favorable decision by the
Airport Authority would have enabled Eagle to begin
operation of the landfill immediately or within a short time
thereafter. Here, on September 25, 1996--almost four
months before the Airport Authority's adverse action--the
PDEP suspended Eagle's construction permits for Happy
Landing because the proposed site contained pr otected
wetlands. Both the Pennsylvania Environmental Hearing
_________________________________________________________________

11. A "local agency" is "[a] gover nment agency other than a
Commonwealth Agency." 2 Pa. Cons. Stat. Ann.S 101. The Clearfield-
Jefferson County Regional Airport Authority was created under 53 Pa.
Cons. Stat. Ann. S 47493. It is plainly a government agency but not an
agency of the Commonwealth itself.

                               19
Board and a state court have upheld this suspension,
which continues in effect pending Eagle's latest appeal.
Consequently, even if the Airport Authority had granted
Eagle permission to construct the landfill pursuant to the
1996 Amendment, Eagle would have been unable to do so
because of the suspension of the construction per mits.
Under these circumstances, the availability of review under
2 Pa. Cons. Stat. Ann. S 752 satisfied due process. Cf.
Cohen v. City of Philadelphia, 736 F.2d 88, 86 (3d Cir.
1984)(state may provide adequate due pr ocess when it
provides " `reasonable remedies to rectify a legal error
by a local administrative body' ") (citation omitted).
"[I]dentification of the specific dictates of [procedural] due
process requires consideration of thr ee distinct factors:
First, the private interest that will be af fected by the official
action; second, the risk of an erroneous deprivation of such
interest through the procedur es used, and the probable
value, if any, of additional or substitute pr ocedural
safeguards; and finally, the Government's interest,
including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail." Mathews v. Eldridge,
424 U.S. 319, 335 (1976). In this case, although Eagle had
a substantial interest in the development of its property as
a landfill, Eagle could not have developed the pr operty for
this landfill use until it obtained the necessary permits
from the PDEP. While Eagle was attempting to obtain those
permits, it could have contested the action of the Airport
Authority in the state courts. Thus, as a practical matter,
the adverse effects during the relevant time period of the
Airport Authority's action were not substantial. Similarly,
the risk of an erroneous deprivation of Eagle's property
interest in any practical sense was not gr eat. And because
Eagle presumably could have obtained state court review
before the Airport Authority's action had any substantial
practical bite, the comparative benefit of better procedures
at the administrative level was diminished. Under these
circumstances, we hold that Eagle's procedural due process
rights were not violated. This case dif fers greatly from the
typical case in which only post-deprivation pr ocess is
available.

                               20
Nor do we find a violation of Eagle's substantive due
process rights. Eagle's briefs do not ar gue that the Airport
Authority denied its application for a reason that is
" `tainted by improper motives.' " Nicholas v. Pennsylvania
State University, 227 F.3d 133, 139 (3d Cir. 2000)(citation
omitted). Rather, Eagle contends that "[t]he Airport
Authority's review was anything but car eful and
considered," that its decision was contrary to
"overwhelming evidence that the Happy Valley Landfill
posed no safety threat to the Airport," that"the Airport
Authority members were confused," and that they were
unable to articulate a basis for their decision. Khodara
Reply Br. at 13-15. Courts must exercise caution before
recognizing substantive due process claims. See, e.g.,
County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998);
Albright v. Oliver, 510 U.S. 266, 271(1994); Collins v. City of
Harker Heights, 503 U.S. 115, 125 (1992); Nicholas, 227
F.3d at 140; Fagan v. City of Vineland, 22 F.3d 1296, 1306
n.6 (3d Cir. 1994 (en banc). For purposes of discussion we
will assume that Eagle's hoped-for use of its Happy Landing
site as a landfill constituted a constitutionally protected
property interest. With this as pr edicate, it would seem that
Eagle's substantive due process challenge to the Airport
Authority's denial of Eagle's application goes to the manner
in which the Airport Authority arrived at its decision. The
core of Eagle's complaint is the contention that the Airport
Authority's decision was not rationally supported by
substantial evidence. But precisely this contention could
have been brought before a state court in the appellate
review of the Airport Authority's decision whose availability,
we have determined, satisfied the requirements of
procedural due process. Under these cir cumstances, we
conclude that the state court review which Eagle did not
elect to pursue constituted sufficient protection of Eagle's
asserted substantive due process rights.

IV.

For the foregoing reasons, Appeals No. 99-3458 and 99-
3475 are dismissed as moot, and that portion of the
District Court's judgment concerning the facial
constitutionality of the 1996 Amendment is vacated. The

                               21
District Court's grant of summary judgment in favor of the
Airport Authority and its directors is affir med. The case is
remanded for further proceedings consistent with this
opinion. On remand, Eagle should be affor ded the
opportunity to amend its pleadings so that the District
Court may have the opportunity to address any claims
regarding the 2000 Amendment.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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