SLF & attorney as a poster status can sometimes lead to, well, awkward posture with regard to deciding what to say.... but I guess I opened the door.
Reading this will lead the reader into legal stuff. The post is necessary (or I think it is, at least) because information about pending court cases which is somewhat misleading or mistaken has crept into the thread. Having been chastised previously for riffing on legal stuff on a pilots' message community (and having deserved it), ... hence this lead-in apology first.
There is litigation in the federal appellate court for the District of Columbia Circuit involving the 737 MAX return to service. The appellate case is a direct outgrowth of the Freedom of Information Act lawsuit still pending in federal district court in D.C. (the trial court) - the case filed by the Flyers Rights group seeking disclosure by FAA of all the documents relating to decision-making about returning the aircraft to service. That case was filed little bit more than a year ago. It got bogged down in a dispute over whether FAA was correct to withhold "proprietary information" submitted by Boeing (the FOIA statute allows this but there are judgment calls and balancing factors being litigated still).
But while the district court case droned on (yeah yeah, I know FOIA review and disclosure takes time, more than 4 seconds of reaction time no doubt), FAA went ahead and returned the aircraft to service in the U.S. It needs to be understood, that is by anyone wanting to understand this litigation because it could and likely will affect the course of future events involving FAA reform as well as lawsuits brought against Boeing....to be understood that the entire purpose of the Flyers Rights FOIA lawsuit was to get the documents from FAA and to conduct an independent review in the public interest -- that's not my characterization let alone endorsement, it's just what they claim in their lawsuit.
So the appellate case is about getting the federal appellate court (where one of the judges also is the President's nominee for Attorney General of the United States, just a little interesting fact) to review the FAA's decision, and to reverse it. But that process - briefing the issues, any procedural motions first, getting the court to resolve the case - takes time.
So the Flyers Rights group also filed a motion asking the appellate court to "stay" the FAA's decision, on an emergency basis. In other words, even though the court has not had much of a chance to "get ahold" of the issues in the case let alone decide them, let alone decide those issues in favor of reversing the FAA's decision, the motion for a "stay" asks the court to undo the return to service while this appeal is pending. (In proper litigation terminology, a motion for stay pending court review.)
The Court of Appeals did, however, deny the motion for a "stay". But the main appeal is still ongoing. There are procedural motions already on file, including one by FAA to dismiss the appeal (on certain formalistic grounds). And there is this very, very relevant item in one of the briefs:
"In its Opposition, the FAA indicates that (if its motion to dismiss is denied) the agency will include in the administrative record the withheld proprietary data on which FAA relied, and make it available to the Court under seal and to Petitioners under an appropriate protective order. That is a very positive step that will indeed permit meaningful review by this Court." (Flyers Rights brief -- if you must know, it's the Reply Brief in Support of Emergency Motion for Stay Pending Review and Opposition to Cross-Motion to Dismiss - but the bold-type for emphasis is mine).
In other words, there is progress, of a sort, as a result of all the litigation and legal maneuvering. If the Appellate Court lets the Flyers Rights appeal go forward, then FAA evidently has told the Court it will provide the documents still being argued over in the district court, for limited review by the court and by Flyers Rights, under a Protective Order of Confidentiality. I seem to recall some poster with a callsign supposedly honoring some airport where the Arsenal of Democracy - and Henry Ford - build bombers in the 1940s saying something about a Protective Order of Confidentiality being a reasonable solution to the FOIA case, about six dozen lawyer jokes ago.
I'd quote and post the summary of the reasoning Flyers Rights cites for its Emergency Stay motion, but the Court's already denied it, and so to close a post already too long, here is all that the Court said in issuing that denial:
"Upon consideration of the emergency motion for stay, the response thereto, and the reply, it is ORDERED that the motion for stay be denied. Petitioners have not satisfied the stringent requirements for a stay pending court review. See Nken v. Holder, 556 U.S. 418, 434 (2009); D.C. Circuit Handbook of Practice and Internal Procedures 33 (2020)."
See, not all legalese goes on interminably.