Northwest Airlines, Inc., Petitioner, v. Federal Aviation Administration, Respondent,memphis-shelby County Airport Authority, Intervenor, 976 F.2d 46 (D.C. Cir. 1992)

Upon consideration of the motion to dismiss, the responses thereto and the reply; the motion to include omitted material in record, the response thereto and the reply; the motion for leave to intervene and the response thereto; and the request for oral argument, it is

ORDERED that the motion to dismiss, insofar as it seeks to dismiss the petition on the ground that petitioner failed to exhaust administrative remedies concerning the imposition of a Passenger Facility Charge on "frequent flyers," be referred to the merits panel to which this petition for review is assigned. The parties are directed to include in their briefs the arguments raised with respect to this issue in the motion to dismiss rather than incorporate those arguments by reference. It is

FURTHER ORDERED that the remainder of the motion to dismiss, which the court construes as a request for summary affirmance of the other issues involved in this petition, be denied. The merits of the parties positions are not so clear as to justify summary action. See Cascade Broadcasting Group Ltd. v. FCC, 882 F.2d 1172, 1174 (D.C. Cir. 1987) (per curiam). It is

FURTHER ORDERED that the motion to include omitted material in record be referred to the merits panel to which this petition for review is assigned. It is

FURTHER ORDERED that the motion of the Charter County of Wayne, Michigan for leave to intervene be denied. Wayne County has not shown that it has any interest in this petition which will not be adequately protected by the parties. It is

FURTHER ORDERED that the request for oral argument be denied.