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IN THE UNITED STATES COURT OF AP

FOR THE DISTRICT OF COLUMBIA C

RECEIVED
JOHN A. TAYLOR,
Petitioner

Petition for Review

Case No.

vs.
MICHAEL P. FIIJERTA,
Respondent

151435

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.

46 110(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

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strictly for hobby or recreational use and which are operated meeting certain
general safety criteria.
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.

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

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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.
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. 33 6(a) of the
Act specifying aircraft that are not properly subject to regulation by the FAA.

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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 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 Petitioners aircraft 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) 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
4

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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
45 As such, that rule was the status quo as of enactment of the Act, and
purposes.
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 Petitioner s
motion, with counsel for Respondent participating by phone. Counsel for
The Academy of Model Aeronautics advertises that it was founded in 1936.
Exhibit 3.
5 U.S.C.A. 55 1(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
5

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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 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. Century
Aluminum Co., 649 F.3d 287, 290 (4th Cir.201 1); CSX Transp., Inc. v. Williams,
406 F.3d 667, 670 (D.C. Cir. 2005); accord Washington Metro. Area Transit
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
46 110. It is Petitioners intention to voluntarily dismiss the District Court action.
6

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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).

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
7

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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,
(2007) (quoting 42 U.S.C.

U.S.

127 S.Ct. 1438, 1460, 167 L.Ed.2d 248

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 long had authority and mandate to register all aircraft.
7 The
argument seems be along the lines 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

See 49 U.S.C. 40102 and 14 C.F.R. 1.1.

8

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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
9 Any attempt to exempt those aircraft, while
every Frisbee and paper airplane.

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.
9

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leaving in small unmanned hobby aircraft, 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 FAA s 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.

10

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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.
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.

11

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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 (6t11 Cir. 1954), cert.
denied, 349 U.s. 930 (1955); Bass v. Richardson, 338 F.Supp. 478, 490 (S.D.N.Y.
1971).
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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

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 discemable 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.
1

th
6
See, Urbain v. Knapp Bros. Manuf Co., 217 F.2d 810 (
Cir. 1954), cert.
denied, 349 U.s. 930 (1955); Bass v. Richardson, 338 F.Supp. 478, 490 (S.D.N.Y.
1971).

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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.

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 FR78593).
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.

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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 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

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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.

fufl Submitted,
t
(e?c

John 4V Taylor, pro se

4115 jerrara Drive
Silve4 pring, Maryland 20906
jat lfenstock.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.

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.

CERTIFICATE PURSUANT TO CIRCUIT RULES 18(a)(4) & 28(a)(1)(A)

The following is list of all parties, intervenors, and amici who have appeared
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
th
4
St., NW
Washington, DC 20530
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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 77fday of

201C.

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
th
4
St., NW
Washington, DC 20530

John

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