USCA Case #15-1495

Document #1590546

Filed: 12/24/2015

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ORGNAL

IN THE UNITED STATES COURT OF

FOR THE DISTRICT OF COLUMBIA CIRC

TTFR

ID

riD
A. TAYLOR,

RECEiVED

Petition for Review

Case No.__________

vs.

15i 4.5

MICHAEL P. HUERTA,
Respondent

PETITIONERS 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 stay 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 1.
I

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Despite the clear prohibitions of the Act, the FAA has issued an Interim Final Rule which
established a national registration database for small unmanned aircraft.
2 Registration is
mandatory, and the penalties for noncompliance include large fines and imprisonment.
The FAA released the Interim Rule on December 16, 2015, with an 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 by 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.
Petitioners aforesaid aircraft have been, or will be, operated as part of a small unmanned aircraft
system, which includes hand-held radio directional controls.

80 FR 78593. A copy of the Rule is attached hereto as Exhibit 2.

2

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The FAA Modernization and Reform Act of 2012 (the Act) was enacted by Congress and
signed by the President on February 14, 2012.
Sec. 336(a) of the Act provides that

...

the administrator of the Federal Aviation Administration

may not 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.

Petitioners aforesaid aircraft meet the definition established by Sec. 336(a) of the Act specifying
aircraft that are not 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 newlyacquired small unmanned aircraft be registered prior to operation (14 CFR 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 aircraft meet the
criteria of the Act for those aircraft for whom FAA regulation is prohibited, they also meet the

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definition of aircraft which the FAA mandates must be registered pursuant to 14 CFR 48.1(b): a)
Petitioners aircraft are unmanned aircraft that are capable of sustained flight in the atmosphere;
b) Petitioners aircraft are unmanned aircraft that are flown within visual line of sight of the
person operating the aircraft; and c) Petitioners aircraft are unmanned aircraft that are flown for
hobby or recreational purposes. Petitioners aforesaid aircraft are, or will 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.
3 Prior to adoption of the Interim Final Rule, the FAAs
longstanding rule, articulated on their website, was that, Registration is not required for model
aircraft operated solely for hobby or recreational purposes.
45 As such, that rule was the status
quo as of enactment of the Act, and registration of model aircraft was not required under FAA
rules.
Petitioner filed an action for declaratory and injunctive relief seeking injunction regarding the
Interim Final Rule in the U.S. District Court for the District of Maryland (Greenbelt Division),
Case No. PWG 15CV3934, on December 23, 2015. Petitioner simultaneously filed a Motion for
a Temporary Injunction or Temporary Restraining Order. Judge Grimm conducted a hearing on
Petitioners motion, with counsel for Respondent participating by phone. Counsel for
Respondent raised the argument that this Court, and not the District Court, has proper
jurisdiction to review this matter. Based largely on that argument, Judge Grimm declined to

The Academy of Model Aeronautics advertises that it was founded in 1936.

Exhibit 3.
5 U.S.C.A. 551(4) provides that, rule means the whole 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, facilities, appliances,
services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing

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grant the TRO, but has indicated that the parties will be heard on jurisdiction and the merits of
the motions in the near future.
6

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 tips 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 strong, 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).

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 Petitioners intention to voluntarily dismiss the District Court action.

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B. Petitioner is likely to succeed on the Merits

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 flown strictly for hobby or
recreational use and which are operated meeting the safety criteria of the Act.
The Act prohibits any rule or regulation related to such aircraft. As the Supreme Court has
frequently observed, use of the word any in statutory text generally indicates Congresss 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 Websters Third New
International Dictionary 97 (1976) in concluding that, [r]ead naturally, the word any has an
expansive meaning, that is, one or 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 omitted)). The Court 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.C.

U.S.

127 S.Ct. 1438, 1460, 167 L.Ed.2d 248 (2007) (quoting 42

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 has articulated the position that this new rule is not a new rule at all, since the FAA has
7 The argument seems be along the lines
long had authority and mandate to register all aircraft.

See49 U.S.C. 40102 and 14C.F.R. 1.1.

7

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that the long-standing rule exempting model aircraft from registration, which was in effect at the
time of the Act, was a violation of the mandate to register all aircraft, so now theyre going to
reverse that rule despite Congress clear direction that the FAA should not regulate hobby
aircraft.
However, the congressional intent of the Act is clear

Congress does not want the FAA

regulating hobby aircraft.

8 The FAAs arguments are nothing more than an attempted end run to
evade a directive from Congress that could not be clearer.
The Interim Final Rule isnt merely the exercise of an authority existing prior to enactment of the
Act, it is a new rule and a new process, which violates the Act.
Assuming, arguendo, that the 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 aircraft need not be registered), which itself
would be a rule in violation of the Act.
Further, if the aircraft registration requirements are applied by the FAA using the broad language
of the authorizing statute, then registration would be required of every Frisbee and paper
9 Any attempt to exempt those aircraft, while leaving in small unmanned hobby aircraft,
airplane.
would again be a violation of the 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 FAAs
8

It is noteworthy that Sec. 336(b) the Act provides that nothing in 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 the FAA properly retains the aforesaid safety enforcement authority, the FAAs 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.

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longstanding rule and practice of not registering hobby aircraft at the time Congress enacted the
Act. Enforcement 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 was timed to cover the exchange of gifts at Christmas. Children all
over America 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 not 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 Stay 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 will suffer 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. While
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.

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Dangerous operation of a hobby aircraft remains subject to enforcement action by the FAA. If
injunctive relief is granted, the FAA will remain free to take effective and lawful actions to
protect the American 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 Stay 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 Act and it is not the province of the FAA or the Court to
override Congress expressed legislative intent.
Certainly, it is in the public interest that the FAA not be allowed to violate the Act or evade the
Congressional directive embodied therein.
It is in the public interest not to allow full implementation of a database that will gather and
make public inappropriate personal information from tens of thousands of Americans, rather than
delaying implementation of the program until the legalities of the program can be fully litigated
and determined by the Court.
The FAA retains full authority under the 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 safety record. While 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 flying fill the media, Plaintiff was unable to find 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 v. Knapp Bros. Manuf Co., 217 F.2d 810

th
6
(

Richardson, 338 F.Supp. 478, 490 (S.D.N.Y. 1971).

Cir. 1954), cert. deniea 349 U.s. 930 (1955); Bass v.

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To the degree the FAA may argue 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 us out onto this slippery slope, theres no telling where theyll take it.
While the FAA is prohibited from regulating safely-operated hobby aircraft, there is nothing in
the Act to interfere with the FAA s enforcement of safety requirements or education of the
public. They remain free to protect the public from dangerous operation.
Petitioner is pursuing this matter almost entirely 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 the Act and 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 v. Knapp Bros. Manzf Co., 217 F.2d 810

Richardson, 338 F.Supp. 478, 490 (S.D.N.Y. 1971).

th
6
(

10

Cir. 1954), cert. deniea 349 U.S. 930 (1955); Bass v.

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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 fail 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 Interim 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 filing 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 Petitioners telephone
contact information, by telephone calls to the Office of Chief Counsel of the Federal Aviation

11

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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 Aviation Administration, 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
4115
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

12

Taylor

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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 1 ()(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 Aviation Administration
Serve:
Michael P. Huerta, Administrator
Federal Aviation Administration
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, DC 20530

CERTIFICATE OF SERVICE
I HERBY CERTIFY that a copy of this filing was delivered to the person identified below by
First Class Mail Postage Prepaid on the 7..tlay of Ocg..j.v 201cE

Federal Aviation Administration

Serve:
Michael P. Huerta, Administrator
Federal Aviation Administration

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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
5554thStNW
Washington, DC 20530

John

14

[or

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