                              United States Court of Appeals
              for the district of columbia circuit
                                


No. 97-1274                                  September Term, 1997

Air Canada, et al.,
               Petitioners
               
v.

Department of Transportation and
Rodney E. Slater, Secretary of Transportation,
               Respondents
               
Dade County, Florida and
American Airlines, Inc.,
               Intervenors
               


Consolidated with 97-1284


     Before: Henderson, Rogers and Garland, Circuit Judges.


                            O R D E R

     It is Ordered, by the Court, on its own motion, that the opinion filed July 31, 1998 is
amended as follows:

     1.  Revise the last sentence of the introduction, in the middle of page 3, to read, in part
(changes in boldface type): 

     Because the Department applied . .  . and because the agency proceeding
     essentially continued the Carrier's lawsuit in which they had the burden of
     proof and the Carriers can point to no prejudice resulting from the assignment or
     its timing, we deny the petitions."

     2.  Strike the full paragraph beginning on page 25 and carrying over to page 26.

     3.  Revise the paragraph beginning on page 26 to read as follows (changes in boldfacetype):


          Without implying that a mid-course change in the assignment of the burden
     of proof can produce anything other than problems, and is hardly a preferred
     method of procedure, the circumstances leading to the filing of Dade County's
     request are unusual, effectively placing the Carriers in the position of the
     requestor in the instant case, and therefore the bearer of the burden of proof. 
     Because the district court directed the parties to take appropriate action
     under  47129 to submit the claim to the FAA, the agency proceeding was
     essentially a continuation of the Carriers' lawsuit. [NEW FOOTNOTE]

          But even if the Department erred in making a mid-course change in
     assignment of the burden of proof, the Carriers show no prejudice as a result. 
     [ Continue with the remainder of the full paragraph now on page 26 and
     continuing to page 27. ] 

     4.  Add new footnote 19, as follows:

           Metropolitan Stevedore Co. v. Rambo, 117 S. Ct. 1953 (1997), is not to the
     contrary, inasmuch as there was no initial determination here that Dade County
     sought to modify and the Carriers filed suit in the district court where they clearly
     bore the burden of proof.





FOR THE COURT:
Mark J. Langer, Clerk



Filed on September 25, 1998
