AIR TRANSPORT ASSOCIATION OF AMERICA INC v. Port of Portland, Intervenor (2019)

ORDER

Upon consideration of the motion of respondent for stay of the briefing schedule for final brief in light of the lapse of appropriations, and the opposition thereto, it is

ORDERED that the motion be denied.

For the reasons stated in Kornitzky Group, LLC v. Elwell, No. 18-1160, 912 F.3d 637, 2019 WL 138710, at *2–3 (D.C. Cir. Jan. 9, 2019) (Randolph, J., dissenting), I dissent from the panel’s denial of the motion for a stay. The majority’s order in effect directs a government attorney to perform work unrelated to any “emergencies involving the safety of human life or the protection of property” and not otherwise “authorized by law” in violation of the Anti-Deficiency Act. 31 U.S.C. § 1342.

After we published the opinions in Kornitzky, it came to my attention that several days earlier a different panel, in response to the government’s § 1342 motion, granted an extension of the briefing schedule in a case in which the government is a party. See United States v. Vasquez-Benitez, No. 18-3076 (D.C. Cir. Jan. 3, 2018) (per curiam order). We now have another panel’s grant of a similar extension, albeit in a case that will be submitted without oral argument. See Franklin-Mason v. Spencer, No. 17-5135 (D.C. Cir. Jan. 10, 2018) (per curiam order).

It is obvious that our circuit has not settled upon any principled way of deciding these stay motions. There is no analytical difference between a motion to stay a briefing schedule (as in this case) and a motion to postpone oral argument (as in Kornitzky ).

Per Curiam