gogr reply brief

8/10/2019 GOGR Reply Brief

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IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

UAS AMERICA FUND, LLC,et al.

,

Petitioners,

v.

FEDERAL AVIATION ADMINISTRATION,

Respondent.

Nos. 14-1156, et al.

REPLY IN SUPPORT OF MOTION

TO HOLD PETITIONS IN ABEYANCE

The Council on Governmental Relations (COGR), petitioner in No.

14-1157, respectfully submits this reply in support of its motion to hold these

consolidated petitions in abeyance to give the FAA an opportunity to consider

public comments on the order under review (Order). As COGR demonstrated in

its motion, because commenters are raising similar legal objections to the same

aspects of the Order at issue here, allowing the FAA an opportunity to address

those objections is likely to benefit the Court by providing it with a further

explication of the agencys views on the issues presented here. See Mot. at 2-3.

The Court thus should exercise its discretion to hold this matter in abeyance,

subject to receiving status reports from the parties every 90 days.

USCA Case #14-1156 Document #1518001 Filed: 10/20/2014 Page 1 of 7


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Petitioners in Nos. 14-1156 and 14-1158 (collectively, UAS) oppose the

motion (ECF No. 1516469). UAS, however, misstates the relevant issues and does

nothing to rebut COGRs showing that the Court may well benefit by abating this

case and requiring status reports.

First, UASs attempt to show that this matter is not functionally similar to

one where a related petition for reconsideration is pending (Opp. at 2) rests on an

erroneous premise. Contrary to UASs apparent belief, when a petition for

reconsideration is filed, there is generally a final rule that is effective and that

can be the basis for enforcement just as is the case here. Compare Opp. at 2.

Thus, for instance, the Court has frequently abated proceedings involving agency

rulemaking orders because other parties have sought reconsideration on related

issues1 even though, absent a stay, rulemaking orders are generally effective 30

days after Federal Register publication. See 5 U.S.C. 553(d). It is therefore not

the case that this Court abates proceedings only when the underlying agency order

is not yet effective.

1See,e.g., Time Warner Entmt Co. v. FCC, 93 F.3d 957, 980 (D.C. Cir. 1996)

(per curiam) (discussing a challenge[] to FCC regulations that was being held

in abeyance pending Commission reconsideration);American TruckingAssns, Inc. v. EPA, No. 97-1440, 1998 WL 65651 (D.C. Cir. Jan. 21, 1998) (per

curiam) (holding a challenge to EPA particulate emission regulations in abeyance

pending administrative reconsideration); Yakima Valley Cablevision, Inc. v. FCC,

794 F.2d 737, 744 & n.26 (D.C. Cir. 1986) (noting that a challenge by the ACLU

to the FCCs new Cable Act regulations was being held in abeyance pending

the Commissions disposition of several petitions for reconsideration).



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Accordingly, although UAS is correct (at 2-3) that COGRs motion does not

contend that the Order is not ripe for review, that fact is irrelevant. Rather, the

question presented by the motion is instead a discretionary one: whether the

FAAs consideration of and response to the many comments it has now received is

likely to facilitate judicial review of its positions concerning model aircraft, so that

the benefits of briefly delaying review exceed the costs of doing so.

Because the matter raises prudential issues, UAS is wrong in contending

(at 3) that Teledesic LLC v. FCC, 275 F.3d 75 (D.C. Cir. 2001), compels denial of

the instant motion. COGR has never claimed that there is an iron-clad rule, id.

at 83, requiring this Court to hold a petition in abeyance merely because

reconsideration has been sought below. Rather, as Teledesicdemonstrates, the

point is that pending agency reconsideration of related matters (like the agencys

evaluation of comments on related matters here) is a significant prudential

consideration[], id., that this Court may wish to consider. Nor does UASs

observation that abeyance was ultimately denied in Teledesic though granted in a

number of other cases COGR cited in note 3 of its motion shed light on the

considerations to be balanced in this case.

Second,UAS questions (at 3) whether COGR lacks standing to file a

motion to hold other parties petitions in abeyance in separately-filed cases. This

Court consolidated these petitions on its own motion on August 27, 2014.



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Consolidated cases are treated as one appeal for most purposes; [t]hey generally

follow a single briefing schedule, they are assigned for hearing on the same day

before the same panel, argument time is allotted to the cases as a group, and they

are decided at the same time. U.S. Court of Appeals for the D.C. Circuit,

Handbook of Practice and Internal Procedures24 (2013). Because this Courts

order thus provides for the appeals to proceed on the same schedule, and because

COGR can move to hold its own petition in abeyance (as UAS does not appear to

dispute), COGR can also move to hold the consolidated petitions in abeyance as a

group. In any event, this Court has authority to hold proceedings in abeyance on

its own motion.2 The question whether COGR has standing to seek abeyance as

to Nos. 14-1156 and 14-1158 is thus of little practical concern, as the Court could

order such relief on its own motion if it found it appropriate.

Third, UAS argues (at 5-6) that abeyance would be an invitation to

indefinite delay. The contention is an odd one, given that COGR has specifically

requested (and the FAA has not objected to) a 90-day reporting cycle that would

allow this Court to monitor the FAAs process and for the parties to seek to move

forward with review if the agency does not act promptly on the comments it has

received. Further, if the FAA were to begin an aggressive enforcement program

2See,e.g.,Roman Catholic Archbishop of Washington v. Sebelius, No. 13-5091,

2013 WL 3357814 (D.C. Cir. June 21, 2013) (per curiam) (doing so); Glascoe v.

United States Parole Commn, No. 03-5026, 2004 WL 223329 (D.C. Cir. Jan. 21,

2004) (per curiam) (same).



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before considering the comments it has received, either UAS or COGR could bring

the agencys actions promptly to this Courts attention and seek a schedule for

briefing and argument.

Fourth, UAS argues (at 6) that further input from the agency is irrelevant

because the Order suffers from a fundamental legal flaw in that it is inconsistent

with section 336 of the FAA Modernization and Reform Act of 2012, Pub. L. No.

112-95, 126 Stat. 11. COGR agrees that the FAA has misread the statute and

that its decision is flawed in numerous other ways. Nevertheless, it remains the

case that, even if the FAA does not change its position, the Court, at the least,

would likely benefit from a fuller explication of the agencys position, assuming

the agency addresses the filed comments in a timely manner.

Fifth,UAS argues (at 7-9) that delay will cause hardship to its members,

some of whom have lost business as a result of the Order. As noted in its motion

(at 3-4), COGR agrees that the Order is presently causing hardship because (among

other reasons) it contains threats to enforce the FAAs regulations on an unlawful

and arbitrary basis. Nevertheless, for the reasons given in its motion and above,

COGR respectfully submits that the chances of resolving these cases in a way that

will alleviate such hardship are greatest if the agency is permitted some

opportunity to consider the comments it has solicited. That period should not be



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indefinite, however, which is why COGR has suggested that the parties file status

reports every 90 days.

Respectfully submitted,

/s/ Sean A. Lev

SEAN A.LEV

GREGORY G.RAPAWY

KELLOGG,HUBER,HANSEN,TODD,

EVANS &FIGEL,P.L.L.C.

1615 M Street, N.W., Suite 400

Washington, D.C. 20036

(202) 326-7900

Counsel for Council on

Governmental Relations

October 20, 2014



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CERTIFICATE OF SERVICE

I hereby certify that, on October 20, 2014, I electronically filed the foregoing

with the Clerk of the Court for the United States Court of Appeals for the District

of Columbia Circuit using the appellate CM/ECF system. Participants in the case

who are registered CM/ECF users will be served by the appellate CM/ECF system.

/s/ Sean A. Lev

Sean A. Lev


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