UNITED STATES COURT OF APPEALS FOR THE DC CIRCUIT AIR CAN v. DOT *    *    * No. 97-1274c October 02, 1998 *    *    * 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 boldface type): 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 Sec. 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 Footnotes United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 97-1274September 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 boldface type): 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 Sec. 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 Footnotes United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 97-1274September Term, 1997 CASE STATISTICS CASES: Top © Silicon Gulch 1999-2002 No Claim to Original Govt. Works