Wednesday, March 28, 2018

Aircraft Hobbyist Slams Federal Aviation Administration Bid To Duck Registry Rule Suit

Law360 (March 28, 2018, 2:13 PM EDT) -- A model aircraft hobbyist fired back at the Federal Aviation Administration's attempt to boot his proposed class action accusing the agency of unlawfully collecting his personal information and imposing registration fees, arguing Tuesday that the agency has intentionally ignored lawmakers and the courts. 

Robert C. Taylor told a D.C. federal court that the FAA knowingly passed an "illegal" rule that required recreational model aircraft hobbyists such as himself to disclose their personal information and pay a $5 fee. But even after the D.C. Circuit struck the regulator's 2015 rule down in May, finding the agency does not have the authority to regulate such aircraft under a 2012 law, Taylor said the FAA kept hobbyists' personal information and registration fees "and even expanded the unlawful registry."

"The FAA’s collection of Mr. Taylor’s registration fee and the collection and maintenance of his personal information was not relevant or necessary to accomplish a purpose of the FAA because, as the D.C. Circuit held, the FAA lacked the statutory authority to promulgate the Registration Rule," Taylor said. "A rule cannot be relevant or necessary where a rule is unlawful."

The FAA's rule was passed amid concern about the public safety risks associated with drone use, including warnings about close calls affecting airplane pilots, prisons and crews fighting wildfires.

But the rule also applied to "model aircraft" weighing between 0.55 pounds and 55 pounds, and recreational enthusiasts argued that it violated the FAA Modernization and Reform Act of 2012.

In explaining the inclusion, the FAA said at the time that the rule is authorized by pre-existing statutory provisions that are unaffected by the FAA Modernization and Reform Act. Under longstanding statues, aircraft are required to register before operation, the FAA said.

But the D.C. Circuit was unpersuaded, saying at the time that the FAA has never previously interpreted that registration requirement to apply specifically to model aircraft and saying the registration rule creates a new regulatory regime. 

"Statutory interpretation does not get much simpler," the circuit panel said at the time. "The registration rule is unlawful as applied to model aircraft."

Taylor, who spearheaded the challenge at the circuit court, filed the instant suit in January, arguing that the FAA violated the Privacy Act since the agency knew it couldn't enforce the rule in the first place. He claims that he lost use of something he paid for, and that the agency unlawfully made money through his fees — a violation of the Little Tucker Act. 

But the FAA balked at the lawsuit, arguing earlier in March that Congress reviewed the issue and reinstated the rule by passing the National Defense Authorization Act, which was signed by President Trump in December. With the green-light from Congress, there's express authority to collect hobbyists' fees and information, the agency contends. 

Moreover, Taylor has filed his case in the wrong court: The district court lacks jurisdiction since only circuit appeals courts can entertain challenges to agency rules, the FAA said. Taylor, the agency said, also lacks standing to sue because at the time his suit was filed, there was no provision against the $5 registration fee he paid. 

The parties have sparred already since the the circuit's ruling. In August, Taylor filed a proposed class action in Maryland challenging the FAA's implementation of the circuit's order forcing it to delete hobbyists' information and refund their fees. However, he voluntarily dismissed the suit after the passage of the NDAA.

Counsel for the parties did not immediately return a request for comment Wednesday. 

Taylor is represented by Thomas L. McCally, Matthew D. Berkowitz, J. Peter Glaws and M. Therese Waymel of Carr Maloney PC. 

The FAA is represented by acting Assistant Attorney General Chad A. Readler, U.S. Attorney Jessie K. Liu, Federal Programs Branch Assistant Director Judry L. Subar and U.S. Department of Justice Trial Attorney Daniel Riess. 

The case is Taylor v. Federal Aviation Administration et al., case number 1:18-cv-00035, in the U.S. District Court for the District of Columbia. 

Original article can be found here ➤ https://www.law360.com

1 comment:

Anonymous said...

Government lawyers waisting taxpayer money. Do you think thank someone doing something illegal with a drone would voluntarily register it before committing a crime?