motion to stay 2

7/23/2019 Motion to stay 2

http://slidepdf.com/reader/full/motion-to-stay-2 1/14

ORGNAL

IN THE

UNITED

STATES

COURT OF

FOR THE

DISTRICT

OF

COLUMBIA

CIRC

TTFR

r

A.

TAYLOR,

4

RECEiVED

Petition

for Review

vs .

Case

No.__________

MICHAEL

P. HUERTA,

15—i

4.5

Respondent

PETITIONER’S

EMERGENCY

MOTION FOR STAY

PENDING REVIEW

OR,

IN

THE

ALTERNATIVE,

FOR

EXPEDITED

REVIEW

Petitioner,

John

A.

Taylor,

pro

Se, hereby moves this

Honorable

Court,

pursuant

to FRAP

18 a ,

Circuit

Rule

18

and

49 U.S.C.

46110 c ,

to

t y

enforcement

of

an

Interim Final

Rule

issued

by

Respondent Federal

Aviation

Administration

“FAA” , and submits

the following

in

support of

his motion.

I. INTRODUCTION

AND

SUMMARY

Sec.

336 a

of the FAA

Modernization and

Reform

Act

of

2012

“the

Act” specifically

prohibited Respondent Federal

Aviation Association

“FAA”

from

promulgating any rule or

regulation regarding a model

aircraft that are

flown

strictly

for hobby

or recreational

use and

which

are

operated

meeting

certain

general safety criteria.

‘H.R.

658/P.L. 112-95,

Feb.

14,

2012,

126

Stat.

11.

A

copy

of

the

relevant portions

of

the Act

is

attached

hereto

as Exhibit

I

USCA Case #15-1495 Document #1590546 Filed: 12/24/2015 of 14



Despite

the clear

prohibitions

of

the

Act

the FAA

has

issued

n Interim Final

Rule

which

established

a

national

registration

database

for

small unmanned aircraft.

Registration is

mandatory and the

penalties

for noncompliance include large fines

and imprisonment.

The FAA released

the Interim Rule

on

December 16

2015 with

n

effective

date

of

December

21 2015.

This

was

timed

specifically to coincide with the receipt

of new

hobby

aircraft

received

as

Christmas presents. The

Interim

Final Rule

requires

registration of new

hobby

aircraft

prior to

use

subject to

the aforesaid severe

penalties.

Prior

to the

issuance

of the

Interim Final Rule

the

FAA had

a long standing Rule

that

hobby

aircraft need not

be registered.

Petitioner and other

similarly situated

consumers

will suffer

irreparable harm

if

forced

to

register

their

hobby

aircraft with the

FAA prior to

use

in

direct

violation of the congressional

prohibition or risk hefty fines

and/or imprisonment.

II.

FACTUAL

AND PROCEDURAL BACKGROUND

Petitioner

incorporates herein y

reference the factual allegations of

the

Petition for Review.

Petitioner is

a

model

aircraft hobbyist. Petitioner is

the

owner of

one

or more small

unmanned

hobby

aircraft that

were

operated

by

Petitioner

prior

to December 21 2015 and a small

unmanned hobby aircraft that was acquired subsequent

to

December

21 2015.

In

addition

Petitioner

desires

to

acquire

additional small unmanned hobby

aircraft.

Petitioner’s aforesaid

aircraft

have

been or will

be

operated

as part

of a

small

unmanned

aircraft

system which includes hand held radio directional

controls.

2

8

FR 78593. A

copy of

the

Rule is attached

hereto

as

Exhibit

2.

2




The

FAA

Modernization and

Reform

Act

of

2012 “ the

Act”

was enacted

by

Congress

and

signed

by th e President

on

February

14, 2012.

Sec. 336 a of the

Ac t

provides that

the

administrator

of the

Federal

Aviation Administration

may

no t promulgate any rule

or regulation

regarding

a

model

aircraft,

or an aircraft

being

developed

as a

model

aircraft if...”

the aircraft

is

“flown strictly

for

hobby

or recreational use. .

and

meets other safety criteria.

Petitioner’s aforesaid

aircraft

meet

the

definition established

by Sec .

336 a of

the

Act specifying

aircraft that are

no t

properly

subject to

regulation

by

the

FAA.

On

December

16,

2015,

the

FAA

issued

an Interim

Final

Rule

80

FR

78593

which

amends

Title 14

of

the

Code

of Federal

Regulations,

and

creates

an entirely

new

set

of

regulations

and

procedures

for

registration.

The

function

of the

Interim

Final Rule is

to create

a

registry

for

small

unmanned aircraft. 14

CFR

48.1 b ,

created

by

the Interim

Final Rule,

provides, “Small unmanned

aircraft

eligible

for

registration in

the United

States

must

be

registered and

identified.

.

pursuant

to

specified

requirements.

The

Interim

Final

Rule

sets

a

trigger date of

December

21, 2015

for the requirement

that

newly-

acquired

small

unmanned aircraft

be

registered

“prior to operation”

14

CF R

48.5 a .

Small

unmanned

aircraft

acquired prior

to the trigger date

must be

registered

no

later than February 19,

2016

Id. .

It is clear from

the

timing of the issuance of

the Interim

Final

Rule, and

it

has

been

widely

reported in

the

media, that the

aforesaid trigger date was

knowingly

and

intentionally

timed to

coincide with

the timing of gifts

exchanged

for

Christmas.

While

Petitioner

s

aircraf t meet the

criteria of the

Act for

those aircraft for

whom

FAA regulation

is prohibited, they also meet the




definition

of aircraft which

the

FAA

mandates must

be registered pursuant

to

14 CFR 48.1 b : a

Petitioner’s

aircraft are

unmanned aircraft

that

are capable of sustained

flight in the

atmosphere;

b Petitioner’s aircraft are

unmanned aircraft

that are

flown

within

visual

line

of sight of the

person

operating

the

aircraft; and

c

Petitioner’s aircraft are

unmanned

aircraft that

are

f lown for

hobby

or recreational purposes. Peti tioner’s

aforesaid aircraft are,

or wil l

be,

part of small

unmanned aircraft systems.

Model

aircraft meeting the registration

criteria under the Interim

Final

Rule

have been

in

existence for many decades Prior

to adoption of the Interim

Final Rule, the FAA’s

longstanding rule, articulated on their

website,

was

that,

“Registration is

no t

required for

model

aircraft operated

solely

for hobby

or recreational purposes ”

As such,

tha t rule was

the s tatus

quo

as

of

enactment

of t he Act, a nd registration of model

aircraft was

no t

required

under FAA

rules.

etitionerf iled an action for declaratory and

injunctive

relief

seeking

injunction regarding the

Interim F inal Rule in the

U.S.

District

Court

for the District

of

Maryland

Greenbelt Division ,

Case No. PW G 15CV3934, on December 23,

2015. Petitioner simultaneously

filed

a

Motion for

a

Temporary Injunction

or

Temporary Restraining

Order. J udge G rimm

conducted a

hearing

on

Petitioner’s

motion, with

counsel

for

Respondent participating

by

phone . Couns el

for

Respondent

raised the

argument that

this Court ,

and no t the District Court, has

proper

jurisdiction to review

this

matter. Based

largely on

that argument,

Judge

Grimm

declined

to

The Academy of Model eronauticsadvertises that it was founded i n 1936.

Exhibit

3.

5

U.S.C.A.

551 4 provides

that, “rule’

means the who le or a part of an agency statement

of

general or particular

applicability and future effect designed

to implement, interpret, or prescribe

law

or

policy

or

describing the

organization procedure or practice

requirements

of

an agency

and

includes the approval or

prescription for the

future of rates, wages,

corporate or financial structures

or

reorganizations thereof, prices, facil i ties, appliances,

services or

allowances

therefor

or of valuations, costs, or

accounting,

or practices bearing

on

any of the

foregoing”

4




grant the

TRO, bu t

has indicated

that the parties will

be

heard on

jurisdiction and the meri ts of

the

motions

in the near future.

III. ARGUMENT

A. Standard

for Review

The standards

for granting

a Motion

for

Stay Pending Review

under

FRAP 18 a and Circuit

Rule

18 a

are

the

same as those for obtaining

an injunction

in

federal

court.

To

obtain

a

preliminary

injunction, moving

parties must establish

that

1

they

are

likely to

succeed

on the

merits,

2

they

are

likely

to

suffer

irreparable harm

in the

absence

of preliminary

relief,

3

the balance of equities t ips in

their

favor, and

4

an

injunction

is

in

the

public

interest.

Winter v Natural Res. Defense

Council,

Inc.,

555

U.S.

7, 20,

129 S.Ct. 365, 172

L.Ed.2d

249

2008 ;

see Dewhurst

v

CenturyAluminum

Co.,

649

F.3d

287 , 290 4th Cir.201 1 ; CSXTransp.,

Inc. v Williams, 406 F .3d

667 , 670

D.C.

Cir.

2005 ; accord

Washington Metro. Area Transit

Comm ‘n v Holiday

Tours,

Inc.,

559 F.2d

841,

843 D.C.

Cir . 1977 .

“The test

is a

flexible

one.

‘If

the

arguments

for one

factor

are particularly s trong, an injunction may

issue

even

if

the

arguments in other areas are rather weak.’

We

have

often

recognized that

injunctive relief

may

be justified, for

example,

‘where

there

is a particularly

strong

likelihood

of success

on the

merits

even if there

is a relatively

slight showing of

irreparable

injury.” CSX Transp. , Inc.

v.

Williams,

406 F.

3d 667, 670

D.C.

Cir.

2005 citations omitted .

6

Petitioner

has

researched the arguments raised

by

counsel for Respondent regarding jurisdiction.

While

there

appears

to

be

a

split in the Circuits, it appears likely that

proper

jurisdiction lies with the Circuit Court, pursuant to

49

USC

§46110.

It

is

Petitioner’s intention to voluntarily dismiss

the

District Court

action.




B. Petitioner

is

likely

to

succeed

on

the Mer its

Adoption

of the Interim

Final Rule

is

a

blatant violation

of

the prohibitions

specified in

the

Act.

It is

a

rule

or regulation regarding

a

model

aircraft

that are

f lown s tr ic tly for hobby or

recreational

use

and

which are operated

meeting

the safety

criteria

of the

Act.

The Act

prohibits “ any ru le o r

regulation” related

to

such

aircraft.

A s the

Supreme

Court

has

frequently

observed, use of th e word “any”

in

statutory

text

generally indicates Congress’s intent

to sweep broadly

to reach all varieties of the

item

referenced.

See, e.g. United

States

v

Gonzales,

520

U.S.

1

5,

117

S.Ct.

1032,

137

L.Ed.2d

132 1997

quoting Webster’s Third

New

nternational ictionary

97

1976

in concluding

that, ‘[r]ead naturally,

the

word

‘any’

has an

expansive meaning, that is, ‘one o r some indiscriminately

of

whatever kind” ;

accord HUD

v

Rucker,

535 U.S.

125, 131, 122

S.Ct.

1230,

152

L.Ed.2d 258

2002 same ; Ruggiero v County

of

Orange 467 F .3d

170, 175

2d Cir.2006 noting that

“Congress

made

[the

phrase

at issue]

even

broader when

it

chose the expansive

word

‘any’ to

precede

the

list”

internal

quotation

marks omit ted . The Cour t

most

recently applied this

principle in interpreting the phrase

“any

air

pollution

agent

or combination of such agents,

including any

physical,

chemical.

substance

or matter which is emitted into or

otherwise enters the

ambient air” in

the Clean

Air Act.

Massachusetts

v

EPA, U.S. 127 S.Ct.

1438, 1460, 167 L.Ed.2d 248

2007

quoting

42

U.S.C.

7602 g ellipsis and emphases

in

original .

It

concluded that

“[o]n

its

face,” the quoted

language “embraces all

airborne

compounds

of

whatever stripe,

and underscores

that intent

through

the

repeated

use

of

the word

‘any.”

The FAA ha s articulated the

position that this new rule is no t

a

new rule

at

all , s ince the

FAA has

long

had authority and mandate to register all

aircraft. The argument

seems

be

a long the l ines

ee 9 U.S.C.

40102 and 14C.F.R. 1.1.

6




that the

long standing

rule exempting

model aircraf t f rom registration, which

was in effect

at

the

time of

the

Act,

was

a violation

of

the mandate

to register all aircraft,

so

now they’re

going to

reverse

that

rule despite

Congress’

clear direction

that

th e FAA

should no t regulate hobby

aircraft.

However,

the

congressional

intent of

the Act is

clear

Congre ss do es not wan t t he FAA

regulating

hobby aircraft.

The FAA’s arguments are

nothing more than

an

attempted

end run to

evade a directive from

Congress

that

could not be clearer.

The Inter im Final

Rule isn’t merely the exercise of an

authority existing prior to enactment of

the

Act,

it

is

a

new

rule

and a

new process, which vio lates

the

Act.

Assuming arguendo, t ha t t he FAA were

to

concede that

the

Interim

Final Rule is

prohibited,

but

embark

on

applying

the registration

requirements for

traditional

aircraft

to hobby aircraft, they

would

be modifying their

prior rule i.e., hobby a ir cr af t need not

be

registered , which

itself

would

be a rule

in

violation

of

the Act.

Further, if the

aircraft registration requirements are applied

by

th e FAA using th e broad language

of

the authorizing statute, then registration

would

be

required of every Frisbee

and

paper

airplane.

Any

attempt to

exempt

those

aircraft,

while leaving in

small unmanned

hobby aircraft,

would

again

be

a

violation of th e Act

as a

rule that regards

aircraft

for whom regulation is

prohibited.

Legal gymnastics aside, any action leading to

a

registry of hobby aircraft

would

clearly be

contrary

to

Congress’ legislative intent. Congress was presumably aware of the FAA’s

8

It

s

noteworthy that Sec.

336 b

the

Act

provides that nothing the

Act limits

the

authority of the FAA

to

“pursue

enforcement

action against persons operating

model

aircraft

who

endanger

the safety of the

national airspace

system.”

While

t he FAA properly

retains

the

aforesaid

safety

enforcement

authority, the FAA’s Interim

Final

Rule

extends to

all

hobby aircraft, regardless of how safely they

may be

operated.

As they

are

contrivances

or

devices

that are

“invented, used, or designed

to

navigate,

or fly in, the

air.”

See,

49

U.S.C. 40102 and

14

CFR 1.1.

7




longstanding r ule and

practice of no t

registering

hobby

aircraft

at

the

time

Congress

enacted the

Act. nforcement

of the

Interim

Final Rule

would

change

the

status quo

ante in a manner

clearly

inconsistent

with

Congress intent.

C.

Petitioner and Others Similarly

Situated will

Suffer Irreparable

Harm

As

indicated above, this

Rule

wa s

timed to

cover

the exchange

of

gifts at Christmas.

Children

all

over

merica

who receive

hobby

aircraft

for

Christmas will

be

unlawfully

required

to navigate

a

federal regulatory

website,

patently

prohibited

by

Congress,

prior

to using

their

new

acquisitions.

Further,

if

the Interim

Final Rule

is

no t

enjoined,

Petitioner and other

hobbyists will

be forced to

choose between

entering

personal

information

in an

unlawful

and

publicly available database

or

risking

multi thousand

dollar fines and/or imprisonment.

D. The

Balance

of Equities

Favors

Issuance

of

a S tay or Other Injunctive

Relief

The FAA

pushed

the

Interim

Final

Rule through, providing

only

five

5 days

between

the

release date and the

date

on which new aircraft acquisitions

must be

registered.

Petitioner submits

that

the

FAA

hoped

the

unlawful registration

process would

be

ensconced

before

anyone could take

meaningful action and

it

would

become

afate

accompli a

‘done

deal”

and

a

functioning bureaucracy

that

a

court would

be

reluctant

to

dismantle.

The

FAA wil l suf fe r

no

harm

if

enjoined from enforcing the

Interim Final

Rule.

Hobby

aircraft

have been around

for many decades

and

free from

registration with no resulting

harm . Whil e

some forms

of hobby aircraft

are becoming increasingly

popular,

Congress’

direction on this

issue

remains clear, and

it

has taken

no

action

to

reverse

itself.




Dangerous

operation

of

a

hobby

aircraft

remains subject

to enforcement

action

by

the

FAA.

If

injunctive

relief is granted,

th e FAA will

remain free

to

take effective

and

lawful actions

to

protect the

merican

public from

dangerous operators

of

hobby aircraft,

and

to

educate

the

public

as to

hobby

aircraft safety issues.

Hobby

aircraft registration does nothing

to

further those

goals and,

more importantly,

violates the

Act.

E.

Issuing the

S tay or

Other

Injunctive Relief

is in the Public Interest

Petitioner

is

loath

to engage

in

policy

arguments in

this

motion,

since

Congress

has

spoken

so

clearly

on

the subject

through the

Ac t

and

it is

no t

the province

of

th e FAA o r th e Cou rt

to

override

Congress’

expressed legislative

intent.

Certainly,

it is

in

the public interest

that

th e FAA not

be allowed

to

violate

the Act

or

evade

the

Congressional directive embodied therein.

It

is

in the public interest no t

to allow full implementation

of a

database that

w il l gathe r and

make public

inappropriate

personal information f rom tens

of thousands

of

Americans, rather

than

delaying

implementation of

the

program

unti l the legalities of the program can

be

fully litigated

and

determined by

the

Court.

The FAA retains full

authority under

t he Act

to

address

safety concerns.

Registration

under the

Interim

Final Rule

will

do

nothing

to

increase

safety, while creating an

illusion

that

a vague

“something” is being done.’°

10

While the underlying

policy considerations are outside

of

the scope

of this action, Plaintiff

notes that hobby

aircraft

have

a

remarkable

safet y record. Wh il e multicopter hobby aircraft so-called “drone”

hobby aircraft are the

new boogeyman even they

have

a surprisingly good record as

far as

recreational

hobbies go. While stories

of

their

abuse

and unsafe fly ing

fill

the media,

Plaintiff was

unable to

f ind an

account of

a

single person who has suffered

serious

harm at the hands of a multicopter . Again, such considerations

are

the province of Congress,

and they have

chosen to prohibit model aircraft regulation.

10

See,

Urbain Knapp Bros.

Manuf

Co.,

217 F.2d

810

Cir . 1954 ,

cert.

deniea 349

U.s. 930

1955 ; Bass

Richardson,

338

F.Supp. 478, 490 S.D.N.Y.

1971 .

9




To

the degree

the

FAA may a rgue

that the Interim

Final

Rule is

an

educational

undertaking,

it

is

noteworthy that nothing in the

Interim

Final

Rule

includes

any

educational

mandate.

A person

may register while

knowing nothing whatsoever

about safe

operation. Of course, once the FAA

leads

u s o ut on to

this

slippery slope,

there’s

no

telling

where they’ll take it.

Whil e the FAA

is prohibited

from

regulating safely operated

hobby aircraf t, there

is

nothing

in

the

ctto interfere with

the FAA’ s enforcement of safety requirements

or

education of

the

pub lic . They

remain free to protect the public

from

dangerous operation.

Petitioner

is pursuing

this

matter almost

ent ir ely in the

public

interest.

Petitioner is

purely

an

aircraft

hobbyist

and

has no financial

stake

on

the outcome.

In

addition,

Respondent

would

suffer

no discernable

monetary harm in the unlikely event that

issuance of

injunctive relief is

ultimately

deemed to

be wrongful . Petitioner

requests that no

security

be required under

Circuit

Rule

18 b ,

or that such security

be

entirely nominal.”

IV.

CONCLUSION

The

Interim

Final Rule clearly

violates

th e A ct an d

Petitioner

therefore

has a

high likelihood

of

success

on the

merits.

Petitioner

and

other

similarly situated hobbyists

will suffer

irreparable harm

if

forced

to

choose

between

putting personal

information

into an

unlawful

and

publicly available

government

database

or risking draconian penalties.

The

equities favor Petitioner

in

that FAA has created artificial time

constraints for

action

and

will

suffer

no apparent

irreparable harm if the injunctive relief is granted.

Prohibiting establishment of

an unlawful registration

database

is

in the public

interest.

See,

Urbain

Knapp

Bros.

Manzf

Co.,

217 F.2d

810

Cir . 1954 , cert. denieaç 34 9 U.S.

930 1955 ; Bass

Richardson, 338

F.Supp. 478, 490

S.D.N.Y. 1971 .

10




WHEREFORE

Petitioner

requests

this

Honorable

Court

to

issue

an order

staying

Interim Final

Rule

80

FR

78593

and

prohibiting Respondent

from:

A.

Enforcing

upon

or

further implementing

the

provisions

of

the

Interim Final

Rule

80

FR

78593 .

B. Requiring

or accepting

registrations

for model aircraft

operated by Petitioner or others

solely for

hobby or

recreational purposes that meet

the use criteria

set

forth

in

Sec.

336 a

of

the

Act.

C. Taking enforcement

action regarding Petitioner or other persons

who fai l

to

comply

with

the registration

or other requirements of the

Interim

Final Rule

80

FR

78593 .

D. Disseminating

any

registration

information received

by

Respondent from

Petitioner or

others

pursuant

to

the

registration process

established by

the Inter im Final Rule

80 FR

78593 .

E. Continuing

to

maintain any registration information received

by Respondent from

Petitioner

or others

pursuant

to

the registration

process

established by

Interim Final

Rule

80

FR 78593 .

STATEMENT

OF

NOTICE

TO RESPONDENT

On

December 24,

2015, prior

to

the f il ing of this action,

Petitioner provided

notice of

his

intention

to

pursue this

motion, its

general nature

and

the

date

and

time

to be

presented for

consideration

to the Court at

10

AM on December 24,

2015 along

with

Petitioner’s telephone

contact information,

by

telephone calls

to

the Office of

Chief

Counsel of the Federal

viation




Administration

the

Office

of

the

Attorney General

of

the United

States the Assistant

U S

Attorney

for

Maryland

and the Office

of

the

U S

Attorney

for the District

of

Columbia

In

addition

Petitioner

emailed

copies

of

the

Petition and

this

Motion

to

the last known

email

addresses

of

the Chief Counsel

of

the Federal Aviation

Administration and

the Assistant

Chief

Counsel

for Regulations

of

the Federal


the Office

of

the

U S

Attorney

for

the District

of

Columbia

as well

as

the

Assistant

U S

Attorney for Maryland

who

represented counsel

in the

U S

District Court

action

spectfully Submitted

John

ay r prose

5 rara Drive

Silve

S

ring Maryland 20906

jat@

ol enstock com

AFFIDAVIT

I JOHN A

TAYLOR

HEREBY

CERTIFY

under penalty

of

perjury

that the

representations

contained

herein are

true

and correct

to

the best

of

my

knowledge information

and

belief

Jo

Taylor

12




DISCLOSURE

STATMENT

PURSUANT

TO

CIRCUIT RULES

18 a 4

26 1

This

matter

does

not involve

a corporation,

association,

joint venture, partnership, syndicate.

or

other

similar

entity.

John

Taylor

CERTIFICATE

PURSUANT

TO CIRCUIT RULES

4

28 a 1 A

The following

is list

of

all parties,

intervenors,

and amici

who have

peared

before

the

district

court, and all persons who

are parties,

intervenors,

or

amici

in

this

court:

Federal


Serve:

Michael

P

Huerta,

Administrator

Federal


800 Independence Avenue,

SW

Washington, DC 20591

Attorney General

of

the United States

Main

Justice Building

10th

and

Constitution Avenue,

NW

Washington,

DC

20530

U.S.

Attorney

for the District

of

Columbia

5554thSt.,NW

Washington,

20530

CERTIFICATE

OF SERVICE

HERBY CERTIFY

that

a

copy

of this

filing was

delivered

to

the

person identified below

by

First

Class

Mail Postage

Prepaid

on the

7..’t’lay

of

Ocg j v 201cE’

Federal


Serve:

Michael P Huerta,

Administrator

Federal


13




8 Independence Avenue

SW

Washington

DC

2 59

Attorney General

of

the

United

States

Main

Justice

Building

th

and

Constitution

Avenue NW

Washington

DC

20530

U S

Attorney

for

the District

of

Columbia

5554thStNW

Washington 20530

John

[or

4


motion to stay 2

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