concurring in the result:
Vermont claims entitlement to $5 million, and the Secretary of Transportation opposes this claim. Vermont says this sum has been, in effect, obligated prior to July 8, 1980 by virtue of the prior rulings of the District Court and that such “obligated” funds should be available to it since the Supplemental Appropriations and Reissue Act of 1980, Pub.L.No. 96-304, 94 Stat. 857, leaves unaffected funds obligated prior to that date. The Court adjudicates this controversy on the merits by ruling against Vermont’s claim. I agree with all of the Court’s reasoning, except the final conclusion that Vermont’s claim is moot. To the extent that Vermont’s claim is rooted not only in the District Court’s prior rulings but also in the prior statute, the enactment of the new statute does not moot the claim, it defeats it on its merits.
This situation is unlike Kremens v. Bartley, 431 U.S. 119, 128-29, 97 S.Ct. 1709, 1714-15, 52 L.Ed.2d 184 (1977), on which the Court relies for its conclusion about mootness. In Bartley the newly enacted legislation mooted the claim of one class of plaintiffs because it gave them the relief they were seeking. As to that relief, the defendant, governed by the new legislation, was no longer opposing plaintiffs’ claim. That made the claim of that plaintiff class moot. Here the defendant continues to op*486pose the plaintiffs claim and persuades all members of this panel that he is correct on the merits. When that happens, he is entitled to a judgment rejecting plaintiff’s claim on the merits.