June 2017 - The first legal challenge to a local drone ordinance, in US District Court for Boston, Mass.
Dr. Michael Singer vs. City of Newton, MA.
(Download court documents below)
On June 12, 2017, Plaintiffs filed a class action complaint in Arkansas seeking (a) a refund of the proposed class members’ registration fees; (b) the destruction of all records associated with each proposed class member; (c) removal any reference to proposed class members’ registrations; and (d) payment of proposed class members’ costs and fees in accordance with the Equal Access to Justice Act. Reichert v. Huerta, No. 17-389 (E.D. Ark.).
The proposed class includes “model aircraft owners” who registered model aircraft in accordance with the process provided by the Registration and Marking Requirements for Small Unmanned Aircraft (the Registration IFR), 14 CFR part 48. The class complaint arises from the May 19, 2017 decision in Taylor v. Huerta, 856 F.3d 1089 (D.C. Cir. 2017), in which the D.C. Circuit vacated the small unmanned aircraft registration requirement to the extent that it applied to certain model aircraft that meet the definition and operational requirements of section 336 of the FAA Modernization and Reform Act of 2012, Public Law 112-95 (now also provided in 14 CFR part 101), which is discussed above in this issue.
Since the D.C. Circuit’s ruling, on July 3, 2017, the date of the formal mandate, the FAA published on its website, the process by which owners of model aircraft operated in compliance with section 336 may seek reimbursement of the $5 registration fee and delete their registration. Additionally, to comply with the court’s order in Taylor v. Huerta, 856 F.3d 1089 (D.C. Cir. 2017), the FAA will not use the identifying information from model aircraft owners whose registrations have been deleted. On October 20, 2017, FAA filed a motion to dismiss for lack of jurisdiction. Plaintiff’s response is due by November 3, 2017, and the government’s reply brief is due by November 13, 2017.
On June 12, 2017, in the Eastern District of Arkansas, another case was filed related to the D.C. Circuit’s May 19, 2017 decision in Taylor v. Huerta, 856 F.3d 1089, which vacated the small unmanned aircraft registration requirement for certain model aircraft. Reichert v. Huerta, No. 17-389.
The proposed class for the new litigation included “model aircraft owners” who registered model aircraft in accordance with the process provided by the Registration and Marking Requirements for Small Unmanned Aircraft (the Registration IFR), 14 CFR part 48.
On July 3, 2017, FAA published on its website, the process by which qualifying model aircraft owners could seek reimbursement of the $5 registration fee and delete their registration. In addition, to
comply with the D.C. Circuit Court’s order in Taylor v. Huerta, FAA announced that it would not use the identifying information from model aircraft owners whose registrations have been deleted.
On December 12, 2017, after the government filed a motion to dismiss and Plaintiffs filed an opposition to the government’s motion, the National Defense Authorization Act (NDAA) was signed into law. The NDAA included a provision which restored the small unmanned aircraft registration requirement that was vacated by the D.C. Circuit.
After FAA published a set of Questions and Answers on its website clarifying the registration obligations for unmanned aircraft owners who had registered their aircraft but had not requested deletion of their information and a refund, Plaintiffs voluntarily dismissed the Eastern District of
John Taylor has a second case pending before the same court, challenging all of Part 101 and the FAA's position that model aircraft are legally considered aircraft.
Below you can download the main briefs, namely Taylor's initial brief, the FAA's reply, and Taylor's answer (note that the case has been consolidated with EPIC's ridiculous attempt to challenge Part 107 because it didn't include privacy rules, which is not the FAA's job to do - please see bottom of page for EPIC's brief).
followed by the July 2018 decision
July 3, 2017
Just over six weeks ago, the Court of Appeals for the District of Columbia issued a stunning reversal of the Federal Aviation Administration's drone hobby registration rule in a case brought by model aircraft enthusiast and lawyer, John A. Taylor. The Court determined in that case that the FAA's rule, as it applies to model aircraft, "directly violates [a] clear statutory prohibition." That prohibition is contained in a law passed by Congress, known as Section 336 of the FAA Modernization and Reform Act of 2012. The Court's decision at the time, however, was not final and the FAA's registry remained in effect. The Court gave the US Department of Justice - the agency that represented the FAA in the case - time to decide whether it wanted to appeal the decision or request a rehearing before the full Court.
Today, the Court issued its final order implementing its May 19 decision to "vacate the Registration Rule to the extent it applies to model aircraft." This means that the FAA's drone registry - at least for now - is officially dead. A request to the FAA for information on what will happen to the registry and whether fees collected by the illegal registration requirement will be refunded in light of the Court's decision was not immediately responded to. This article will be updated with any additional information.
The Court's reversal of the FAA's registration rule may not be the final word on whether hobbyists will be required to register their drones in the future. At least one bill pending before Congress would reinstitute the registration requirement for model aicraft flyers.
July 5, 2017
The FAA is providing the following updated information regarding the Small UAS Registration and Marking interim final rule as a result of a recent decision (PDF) by the U.S. Court of Appeals for the District of Columbia Circuit regarding the small UAS registration program.
The court's decision invalidated the registration requirement as it applies to certain model aircraft that meet the definitional and operational requirements provided in section 336 of the FAA Modernization and Reform Act (PDF). Owners of model aircraft which are operated in compliance with section 336 are not required to register. Owners of all other small unmanned aircraft, including newly-purchased unmanned aircraft not operated exclusively in compliance with section 336, remain subject to the registration requirement. The FAA continues to encourage voluntary registration for all owners of small unmanned aircraft.
The FAA is working on a final rule with respect to registration and marking that will implement the court's decision. In the meantime, if you are an owner operating exclusively in compliance with section 336 and you wish to delete your registration and receive a refund of your registration fee, you may do so by accessing a registration deletion and self-certification form (PDF) and mailing it to the FAA at the address designated on the form. Owners who already received a refund during the initial grace period are not eligible to receive a refund. This form has been submitted to the Office of Management and Budget for approval of the information collection.
July 7, 2017
A recent decision by the U.S. Court of Appeals for the District of Columbia Circuit regarding the small UAS registration program left a lot of people wondering about one thing: Where’s that $5 I spent on the registration going? All in all, the FAA collected somewhere in the neighborhood of $4 million through more than 820,000 registrations, so it was a valid question to ask.
May 24, 2017 - my interview on NPR Phoenix on KJZZ
On March 14, 2017, the U.S. Court of Appeals for the District of Columbia Circuit held oral argument in Taylor v. Huerta, 856 F.3d 1089 (D.C. Cir.). In this case, John A. Taylor, a model airplane operator, and the same petitioner identified in the small unmanned aircraft system (UAS) rule litigation, sought review against the FAA in the D.C. Circuit, challenging: (1) an Interim Final Rule (IFR) establishing a web-based registration process by which small unmanned aircraft owners can satisfy the aircraft registration requirements; (2) a Clarification and Request for Information related to UAS registration; and (3) Advisory Circular (AC) 91-57A, which provides guidance to persons operating model aircraft and refers to FAA restrictions on aircraft operating within the Washington, D.C., Flight Restricted Zone, and Special Flight Rules Area. The IFR and Clarification and Request for Information challenges present similar issues and were briefed together by the government. The petitioner argued that the IFR is outside of FAA’s authority, claiming the following: (1) “model aircraft” are not “aircraft” subject to FAA’s regulatory authority because Congress created a class of unmanned aircraft called “model aircraft” that are not aircraft; (2) the IFR is not consistent with section 336 of the FAA Modernization and Reform Act of 2012 although Congress also requires, by statute, for all aircraft to be registered and registration is not a new requirement; (3) the IFR is arbitrary and capricious; and (4) FAA’s decision to proceed through an interim final rule rather than through notice-and-comment rulemaking was not justified by good cause notwithstanding the agency’s argument that an unprecedented number of unmanned aircraft were purchased over the 2015 holiday season and into 2016. The government disputed each of these points.
On May 10, 2017, the court issued a decision vacating the UAS registration rule to the extent that it applies to model aircraft operating in accordance with sec. 336 of the FAA Modernization and Reform Act of 2012 (Pub. L. 112-95) (FMRA). The court found that the rule requiring modelers to register under part 48 violated the statutory prohibition (in section 336 of the FMRA) on promulgating rules/regulations regarding model aircraft. However, the vast majority of model aircraft purchases do not quality as modelers under Section 336. FAA, through its website, has advised the hundreds of thousands of model aircraft owners who do not qualify for an exception under Section 336 that they must register their aircraft with FAA. FAA has set up a refund and record deletion procedure for those who do qualify as modelers under Section 336.
On August 3, 2017, Robert C. Taylor, represented by John A. Taylor (petitioner in UAS registration litigation in D.C. Circuit), filed a complaint and motion for interim relief the U.S. District Court for the District of Maryland seeking relief regarding model aircraft registration deletion and refund of model aircraft registration fees. Taylor v. Huerta, No. 17-2191 (D. Md.).
The relief requested substantially mirrors that sought in the unsuccessful motion for contempt in Taylor v. Huerta, Cons. No. 15- 1495, 16-1008, 16-1011 (D.C. Cir.), discussed above in this issue. In response to this latest challenge, the government opposed the motion, arguing that the court lacks jurisdiction over the matter, Plaintiff is unlikely to succeed on the merits, and that Plaintiff failed to demonstrate an actual and imminent irreparable injury.
Plaintiff subsequently filed an amended complaint, reframing the claims in his initial complaint to allege constitutional violations and adding Privacy Act claims. A hearing on the interim relief took place August 23, 2017. The court denied Plaintiff’s motion. Further, during the hearing, the court asked Defendant to provide a letter brief (no more than 3 pages) by September 1, 2017, identifying the deficiencies in Plaintiff’s amended complaint.
Plaintiff further amended his complaint on September 15, 2017, by dropping the Privacy Act claim and restating the constitutional claims. These revisions do not change the theme of his argument which is that the FAA’s interpretation of the D.C. Circuit’s decision Taylor v. Huerta is unlawful. The government’s position throughout the briefing has been that the court lacks jurisdiction to hear this matter and further, that Taylor is not entitled to any relief. Briefing is expected to be completed in November 2017.
Small Unmanned Aircraft Registration: Two Related Challenges with Respect to Agency Implementation of D.C. Cir. Decision
On December 18, 2017, Robert C. Taylor voluntarily dismissed a complaint and motion for a temporary restraining order or preliminary injunction in the U.S. District Court for the District of Maryland, which
had sought equitable relief for model aircraft registration deletion and refund of model aircraft registration fees. Taylor v. Huerta, No. 17-2191 (D. Md.) Taylor was represented by John A. Taylor, the petitioner in Taylor v. Huerta, 856 F.3d 1089, in which the U.S. Court of Appeals for the D.C. Circuit vacated FAA’s small unmanned aircraft registration requirement to the extent it applied to certain model aircraft that met the definition and operational requirements of section 336 of FAA Modernization and
Reform Act of 2012.
The District Court denied Plaintiff’s motion for TRO or PI, but permitted him to file an amended complaint, which he did on September 15, 2017. On December 12, 2017, after the government’s motion to dismiss was fully briefed, the National Defense Authorization Act (NDAA) was signed into law. The NDAA included a provision which restored FAA’s small unmanned aircraft registration requirement
that was vacated by the D.C. Circuit. On December 18, 2017, Plaintiff voluntarily dismissed his case.
On January 5, 2018, Plaintiff filed a new complaint in the D.C. District Court, Taylor v. FAA, No. 18-35, in which he alleges violations of the Privacy Act and the constitutional right to privacy, unjust
enrichment, and illegal exaction on behalf of himself and a class of similarly-situated plaintiffs based on FAA’s implementation of the D.C. Circuit’s decision. Several days later, Plaintiff filed a motion for class
certification. On February 8, 2018, the court granted the government’s motion to stay briefing on class certification pending the government’s motion to dismiss.
On March 13, 2018, the government filed a motion to dismiss arguing, among other things, that Plaintiff lacks standing because at the time the complaint was filed, FAA’s authority to require registration for all small unmanned aircraft operators had been restored by the NDAA. As a result, FAA’s decision regarding how to implement the D.C. Circuit’s decision, which vacated in part the small unmanned aircraft registration requirement, was no longer necessary or in effect. In addition, Plaintiff failed to state a claim on which relief could be granted for all of his claims, because after the NDAA was enacted, all small unmanned aircraft owners, including Plaintiff, are required to register their aircraft.
Plaintiff filed his opposition to the government’s motion to dismiss on March 27, 2018 arguing Plaintiff has standing, the Court has subject matter jurisdiction, and Plaintiff has stated claims upon which relief
may be granted.
January 4, 2016 - FAA Sued in Federal Court over UAS Registration Rules
The lawsuit, challenging the FAA registration of small UAS that applies to hobby and recreational users as being illegal, was filed in the Court of Appeals for the District of Columbia on December 24, 2015 by a model aircraft enthusiast, Maryland resident, and insurance attorney, John A. Taylor on his own behalf.
Taylor is requesting that the court "issue an order declaring that the [FAA's registration rule] is void" and prohibited by Section 336 of the FAA Modernization and Reform Act of 2012. He alleges that that section specifically prohibits the FAA from promulgating any new rules or regulations regarding model aircraft if they are flown for hobby or recreational purposes.
Taylor requested an emergency stay of the FAA's registration requirement while the case winds its way through the legal process. That request was denied by the Court of Appeals on December 24, 2015, stating that Taylor "has not satisfied the stringent requirements for a stay pending court review."
The case will now proceed according to a schedule issued by the Court, with the next filing deadline January 27, 2016.
Download the complaint below
Pituch v. Pi Kappa Phi - Los Angeles Superior Court - CA
- plaintiff Alina Pituch suffered severe injuries to back of head, forehead, and left eye at a USC fraternity party when a drone fell and hit her
- this happened in the back yard of the frat house on October 3, 2015
- operator (Perfect Event Inc.) and fraternity (Pi Kappa Phi) sued on September 2016 for negligence and premises liability
Ellis v. Billcliff - Rockingham Superior Court - NH
- December 2016, two wedding guests (Kneena Ellis and Kelly Eaton) are suing groom (Barry Billcliff) and Searles Castle (venue) over drone injury caused by another guest, even though groom was not operating the drone himself
- Ellis suffered a laceration requiring more than 20 stitches and a concussion
- Eaton suffered orbital and nose fractures, concussion
- they both claim they sufferent permanent physical and emotional injury and are suing for negligence
- venue claimed they did not grant permission to have Billcliff fly a drone
Doe v. Skinner - Seattle Municipal Court - WA
- June 28, 2015, drone operated by Paul M. Skinner (owner of an aerial photography company) hit building and fell on a 25-year old woman watching Pride Parade in Seattle causing concussion
- January 2017, criminal conviction for reckless endangerment (gross misdemeanor)
- 30 days in jail and $500 fine
- civil suit pending
February 17, 2016 - TechFreedom v. FAA - filed in the U.S. Court of Appeals for the District of Columbia arguing that the UAS registration rules put in place in December 2015 violate a federal law that prohibits the FAA from regulating recreational UAS. (read the complaint below)
January 20, 2016 - L.A. City Attorney files first criminal charges under new drone ordinance
The ordinance from September, 2015 is attached below - and it shows almost verbatim FAA language...and looking at the FAA's field preemption seems to conflict...(see FAA's Dec 17, 2015 Fact Sheet)
January 4, 2016 - First lawsuit to clarify the rights of UAS operators and property owners filed in Federal Court
Kentucky resident David Boggs filed a suit in the United States District Court of Western Kentucky asking the court to "define clearly the rights of aircraft operators and property owners" as they relate to unmanned aircraft.
The lawsuit stems from an incident last year that gained national media attention in which a Hillview, Kentucky resident shot down an unmanned aircraft being flown by Boggs, claiming that the UAS had trespassed and invaded his privacy.
Although the shooter initially faced criminal charges, those charges were eventually dismissed by a state court judge. On October 26, 2015, Kentucky District Court Judge Rebecca Ward dismissed the criminal charges, saying that "he had a right to shoot" at the aircraft. Boggs, on the other hand, claimed that he was approximately 200 feet above the property at the time it was shot down and did not view or record the defendant's property.
James Mackler , Boggs' legal counsel said: "The tension between private property rights and the freedom to use the national airspace is important to both the unmanned aircraft industry and the general public. Property owners deserve to be free from harassment and invasion of their privacy. Likewise, aircraft operators need to know the boundaries in which they can legally operate without risk of being shot down. This lawsuit will give clarity to everyone."
March 3, 2016 - Memo in support of motion to dismiss
Download the complaint below and memo and watch the video too
EPIC sued the Federal Aviation Administration for failing to establish privacy rules for commercial drones as mandated by Congress. Congress required the FAA to develop a "comprehensive plan" to "safely" integrate drones into the national airspace. In 2012, over 100 organizations, experts, and advocates joined EPIC in petitioning the FAA to establish privacy protections prior to the deployment of commercial drones in the United States. In 2014, the FAA responded to EPIC's petition, claiming that drone privacy implications "did not raise an immediate safety concern." The FAA further stated, "the FAA has begun a rulemaking addressing civil operation of small unmanned aircraft systems in the national airspace system. We will consider your comments and arguments as part of that project." But in 2015 when the FAA announced a rulemaking on commercial drones, the agency purposefully ignored privacy concerns, stating that privacy "issues are beyond the scope of this rulemaking."
Electronic Privacy Information Center (EPIC) and John Taylor (the same petitioner who challenged the Registration IFR) challenged FAA’s Small Unmanned Aircraft System Final Rule (small UAS rule), issued by the Secretary and the Administrator.
Electronic Privacy Information v. FAA, Nos. 16-1297, 16-1302 (D.C. Cir.) The small UAS rule provides the regulatory framework to enable the operation of small UAS (less than 55 pounds) in the national
airspace system. EPIC previously sued FAA on the small UAS notice of proposed rulemaking (NPRM), alleging that FAA was statutorily required to include privacy regulations in the small UAS rule, and that
the agency erred by not addressing privacy in that rulemaking. EPIC's previous lawsuit was dismissed as premature because an NPRM is not a final agency action subject to judicial review. In its current petition, EPIC again challenges the omission of privacy regulations from the small UAS rule and argues that FAA is statutorily required to address privacy with regard to small UAS.
John Taylor also seeks judicial review of the small UAS rule. In his brief, Taylor argues that the small UAS rule exceeds the FAA’s statutory authority to the extent that it regulates hobbyists who do not satisfy all the criteria specified in section 336 of the FAA Modernization and Reform Act of 2012, Public Law 112-95 (the Act). He further asserts that the FAA has exceeded its authority by regulating operations that are not in “air commerce” in so much as the final rule regulates low-altitude small UAS
operations. Taylor also argues that the notification to airports and the FAA-created B4UFLY app used to assist in that notification violates the Paperwork Reduction Act although Petitioner failed to file comments on the NPRM, and none of the other commenters raised this issue.
The agency’s response brief argues that EPIC lacks standing in this case because it has not suffered any programmatic harm as a result of the small UAS rule and its members cannot show an imminent risk of
their privacy being violated by a small UAS operated under the small UAS rule. The brief also explains that EPIC’s arguments are meritless because (1) the Act did not require the FAA to address privacy, and (2) since the FAA is a safety agency with a safety mission that does not include privacy between individuals, it was not arbitrary and capricious for the agency to decline to regulate this area in the small UAS rule.
EPIC’s reply continues to attempt to stretch the FAA’s authority by expanding the definition of hazard such that it would reach to privacy-related harm. EPIC argues that because the agency is directed under Section 333(b) of Pub. L. 112-95 to determine which types of UAS create a hazard to users of the NAS or the public, that the term hazard must be interpreted in an all-encompassing manner. With respect to standing, EPIC counters that the FAA has caused it harm by impairing its privacy protection advocacy,
which includes public education about privacy risks associated with small UAS operations. EPIC also counters that its members can show injury because members’ declarations assert that drone surveillance
will necessarily increase simply because of such members’ proximity to test sites.
Regarding Taylor, the agency’s response brief argues that Taylor lacks standing to raise his arguments about modelers operating under Section 336 because the small UAS rule did not impose any restrictions on those operations. All the rule did was exempt Section 336 operations from the small UAS rule and prohibit such operations from endangering the safety of the NAS, which the agency was permitted to
do by Section 336(b). With regard to Taylor’s arguments about non-336 hobbyist operations, the brief explains that there is no statutory basis as to why the agency cannot regulate non-336 hobbyists in the same manner as any other small UAS. Taylor’s reply includes arguments similar to those provided in his opening brief.
The Department filed a notice of supplemental authority with the court after the National Defense Authorization Act for 2018 (NDAA) was enacted, which restored the requirements of the small UAS
registration rule to its state prior to the D.C. Circuit’s decision vacating the portion of the rule applicable to model aircraft operated in accordance with Section 336.
The D.C. Circuit heard oral argument on January 25, 2018 at American University.
The panel was Judges Sentelle and Randolph (by phone), and Chief Judge Garland.
Sarah Nilsson, J.D., Ph.D., MAS
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